Thursday, April 16, 2020

General Defences to Criminal Liability in Nigeria

*General Defences to Criminal Liability in Nigeria*( A well known topic in Criminal law for those in LLB 3.)

*Criminal Law*
The Constitution of Nigeria provides that no person shall be criminally liable and punished without there being first, a law creating the offence and prescribing a punishment for it. The Constitution also proscribes a retroactive criminalisation. Where the written law proscribes a conduct and a person violates the law and the prosecution is able appropriately to prove the facts of the case, the court may yet acquit the purported offender. In essence, though a person may in fact be responsible for an act or omission, he/she may not, in law, be held responsible. The reason may be that the act or omission was excusable or justifiable. Perhaps the accused would have been exonerated because he avails himself/herself of the defences or immunities allowed in law, or for some reasons as I shall enunciate broadly in the course of this lecture.

Literarily. Criminal responsibility means: Liability to suffer or pay compensation in certain eventualities Legal accountability; liability to be made to account or pay; Capacity which normal people have to control their actions and conform to law.
Statutorily, the Criminal code defines the term to mean liability to punishment as See for an offence. (See section 1)The Criminal Code has laid down certain circumstances in which a person who breaks the law and ordinarily ought to be punished should not legally be held accountable. The reason may be that the person lack the mental capacity, he is excused by law, his conduct constituting the offence is justifiable or by reason of his status, position or office or other grounds following defences are open to any person charged with an offence; legal accountability.

 *Criminal Law(Defences to Criminal Liability)*
Mistakes as a defence to crime, are of two kinds:
1. mistake of law
2. mistake of facts

Mistake of Law.
Ignorance of the law does no afford any excuse for any act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence Mistake of Law, also called ignorance of law, is an invalid defence. Except where knowledge of the law is an element of the offence charged. Thus a mistake of Law would be a valid defence in the following cases. <1> Action from a bona fide claim of right.
<2>Action from execution of an erroneous sentence, process or warrant.
<3> Action from Sentence or Process or warrant without jurisdiction.
<4> Action from Irregular process or warrant.

To avail a defence in such cases, the accused must act in good faith and in the belief that the sentence, process or warrant was issued with authority.
 In the case of Ogbu v R (1959).
O was alleged to have given a bribe to D in order to induce him (D) to appoint O a village head and therefore a tax collector.
O and D were both charged. O pleaded a mistake of law, contending that he did not know it was an offence to so bribe D and was acquitted. On appeal by the other accused (D). The Federal supreme Court expressed its opinion that it was not satisfied that the trial court was right in law in acquitting the first accused on those findings.
Ignorance of law is a good defence where knowledge of the law by the offender is expressly declared to be an element of the offence.
Example are:
Receiving stolen property, not knowing them to be stolen.
Uttering Counterfeit coins, not knowing them to be counterfeits.

*Mistake of facts*
A person who does or omits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is nor criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist, section
25, Criminal Code.
Where there is a reasonable and honest mistake of fact the offence is treated as if the fact had been true.
B reasonably mistakes D’s bicycle for his and takes it.
 The mistake must be such that any reasonable man would be likely to make the same mistake.

If KJ allows himself to be intoxicated of his own free will, he is responsible for his acts and its consequences. Voluntary Intoxication is never an excuse in a crime. But if it is as to prevent a person from knowing what he was doing or that what he was doing was wrong; offender will be treated in the same way as a man, who is insane or under delusion as the case may be. Intoxication includes a state produced by drinking, drugs, narcotics etc. The cases where intoxication is raised as a defence are dealt with in the same way as insane. To avail a defence, therefore, the accused must show that he was so drunk at the time of the criminal act as to be incapable of forming the special intent in the crime.

*Intoxication is a defence if:*
1. intoxication is caused by the negligent act of another
2. the person charged was by reasons if intoxication insane temporarily or otherwise at the time of such act or omission.

In the case of *Ahmed v. State*
Ogundare, JSC said:
Intoxication per se is not a defence. To be a defence, it must be shown by the accused that the intoxication is not self induced or that the extent of it rendered him at the time of the act or omission insane temporarily or otherwise, that is that he did not know2 what he was doing.

In Imo v State (1991), per Nnaemeka, JSC observed:For the defence of intoxication to be available to the accused person, as a defence, he must prove on a preponderance of evidence, that at the time of the act or omission, that is called in question, he was in such a state that he did not know that such an act or omission was wrong or did not know what he was doing.
Furthermore, he has to prove either that the state of intoxication was not self induced or was caused without his consent by the malicious or neglected act of another person see sec.29(2)(a) or that the extent of intoxication was so high that he was insane, temporarily or otherwise at the time of the act or omission. See Sec.29(2)(b) of criminal code.

Also remember two principles of law relating to this defence:

1. The presumption of law that a person intends the natural consequences of his act.

2. The presumption of law that every person is sane.

Both presumption are rebuttable

Evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequence of his act: See R v Owarey and Egbe Nkanu v Stae (1980). The burden of proving intoxication is on the accused person.

You have learned that sections 24 and 25 of the Criminal Code provide general defences to criminal responsibility. Thus no person can be held liable for acts or omissions which occur independently of the exercise of his will or by accident. Insanity prevents the exercise of ones will and therefore a general defence in criminal law.
Every person is presumed to be sane, until the contrary is proved.
A person is exempted from criminal responsibility if it is proved that his insanity is such that:
1. He did not understand what he was doing
2. he did not know that he ought not to do the act or make the omission.
3. he was incapable of controlling his action.

In this context insanity means either;
a state of mental disease or
a state of natural mental infirmity.

The term “provocation” used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act, or insult of such a nature as to be likely when done to an ordinary person or in the presence of an ordinary person to another person who is under the immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered, (section 283 CCA).

 *Defence of provocation*
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault if he is in fact deprived by the provocation of the power of self control, and acts upon it on the sudden and before there is time for the passion to cool; provided that the force used is not disproportionate to the provocation and is not intended and is not such as is likely to cause death or grievous harm, (section 284, CCA).

Killing on provocation:
when a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death is the heart of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only, (section 318,CC).The provisions of the criminal code as stated above did not define the term “provocation” They merely attempted to explain it.
Fakayode (1977) stated that the defence of provocation consists of such matters of fact as to tend to show that:
(a) the victim did a wrongful or insult.
(b) (i) To the accused, or
(ii) To somebody related to or under the care of the accused and in the presence of the accused
(C) Capable of depriving the ordinary man of his power of self control
(d) Accused was actually deprived of his power of self control
(e) Accused acted on the sudden and in the heat of passion without cooling time
(f) (i) no unreasonable or excessive force was used, or
(ii) the means of retaliation was appropriate.
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