In Nigeria criminal jurisprudence section 24 of the criminal code serves for us the purpose which the doctrine of men serves in English law. This section is similar to the section 23-25 of the Queens land criminal code from which our code drives.

In many jurisdictions great debates have ensued to the particular point from which to start calibrating the levels of blame worthiness or culpability of an accused. Is it from the point of view of purpose, knowledge, recklessness or negligence or can one ever be held strictly liable for an offence committed outside any of the above mental state?

According to Prof Okonkwo notes on section 24 of the criminal code page 1 a clear understanding of the principle is required for better application to situations where it ought to be applied as most of the decisions which have applied it have not shown a clear understanding of the principles. In this work we will throw some light on the application of the section by Nigerian Courts and our findings.                     

Section 24 of the criminal code provides as follows:
“Subject to the express provisions of this code relating to negligent acts and       omissions, a persons is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the  offence constituted in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial, so far as regard criminal responsibility.

This provision no doubt is the most important section of the criminal code. The section envisages two interpretations.

That one is not criminally responsible for an act or omission which occurred independently of the exercise of his will.

The import of Section 24 of the criminal code is to serve for us, what the English doctrine of Mens rea serves to the white men. A critically look at our criminal codes would reveal that “Mes rea” is never mention and in view of Section 24 it would be wrong for one to import Mens rea into Nigeria, rather it suffices to use words like “like acts or omissions which occurs independently of the exercise of one’s will…” see Notes on Section 24 of the Criminal Code (page 11) by Prof. C. O Okonkwo SAN.

Section 24 has two limbs that apply to exclude criminal liability altogether and are not dependent on the other. They apply in different situations and the test to determine liability for an act or omission in the first limb differs from the test to determine liability or otherwise for the consequences of the act under the second limb; and here lies the confusion which progressively assailed Nigerian Courts till the present day.

The first limb of Section 24 within tenets of the provision exculpates one from criminal responsibility only when the act or omission occurs “independently of one’s exercise of one’s will” and not necessarily against one’s will. Thus, in applying the first limb one must ascertain what the forbidden act is and then inquire whether it occurred independently of the exercise of D’s will. 

Rationally, it would be against the natural justice and fairness for one to be held liable for acts or omission which one did not will but happened outside his control. English courts have tried to uphold the view that it is never necessary to have recourse to the old concept of Mes rea, rather, it should be determined by considering if the person did it accidentally or independently of the exercise of his will. The above was the holding of the court in Widgee Shiree Council V Bonney (1907) 4 CLR 977 at pg 981-982 (see also Queensland criminal code section 23 – 25).

Perhaps, the case of Timbu Kolian V Queen (1968) 119 CLR 47 would illustrate more, the meaning of an act which occurred by accident in the case, a man after series of quarrel with his wife decided to go and stay outside. While outside, his nagging wife still met him. The defendant aimed a moderate blow of a light wood at the wife, but unknowingly struck it at his three month old son who died instantly. The event took place in the dark.
In this case the Judges were divided as to which limb applied. Kitto,Menzies and Owens JJ held that the defendant was exculpated by the section. They held that it was the case of accident. Although the blow was aimed at the woman, it was unknown to him that the wife was carrying a baby. The result gotten was definitely not withheld. It therefore follows that accident can occur in several ways such as

a.      The person by any diligence could not for see the happening of the event while he was performing a lawful act.
b.      That the event takes place independently of the will of the actors.
c.      That the event takes place although the actor intended a different result no acted without any negligence or recklessness.
d.      That the event takes place by mistake.

It is disheartening that Nigerian courts often reject a defense of accident even when one did not “will” the consequence. This I suppose, is a gross miss application of Section 24 hence, in Abdulbaki V. Katsin Native Authority (1961) NNlM12, the Court refused the defense of accident because he fought the victim unlawfully.

However, Audu Umoru V the state (1990) 3 NWLR (pt 138) 363, the court aptly and courageously applied the provision of Section 24 to acquit the accused although the victim died as a result of his unlawful action.

In the case, V, a lawyer returned from a wake-keeping early one morning. He packed his car and came out. X who was sitting nearby challenged him for packing his car where he did but V ignored him. As a result of this, X walked to V and slapped V who fell and hit his head on the tarred road and died three days later. In the High Court, X was convicted for manslaughter but on appeal, (Uwaifo and Kutigi JCA, Oguntunde JCA dissenting) held that the second limb of S. 24 exculpated D. That V’s death was accidental because “it now not intended and not reasonably probable”. The court further held that it was even a surprise for V to fall as a result of a slap.

The second limb talks about accidental events. An event is accidental if it is not intended by the actor, is not foreseen by him and is not reasonably foreseeable. The test of foresight is objective. But if D sees an event which no reasonable man would have foreseen then accident is ruled out.

The first reported Nigerian decision which applied Section 24 is Iromatu v State (1964) 1 All N.L.R.311 S.C. In that case D was returning from a festival armed with a gun. In an attempt to recover it from V, D accidentally touched the trigger. The gun went off and killed V. There was evidence that at the first occasion, D never handled a gun in his life and did not even know how to load it. His conviction was quashed by the Supreme Court as the prosecution failed to prove that the firing was voluntary or that the circumstances disclosed a reckless disregard for the life of others.
Nigerian courts have consistently and variously propounded the theory that a willed, deliberate and intentional act negates the defense of accident that such event must be the result of an unwilled act, that section does not deal with an act but an event, that the act leading to the accident must be a lawful act done in a lawful manner. In Queensland its is settled law that lawfulness or unlawfulness is not a criterion of criminal responsibility for its accidental result that is the position under Section 24 of the Criminal code.

 In Samson Udoka v State, D and his colleague, two policemen stationed at a tollgate, pursued a vehicle driven by V which had passed the tollgate. They caught up with the
vehicle as they asked questions of V, the gun held by D went off and killed V. one view of the evidence was that D shot V deliberately. Another view, put forward by D was that the gun went off went it hit the bonnet of V’s vehicle. It became a question of oath against oath. D was given the benefit of doubt. His conviction for murder was quashed and a conviction for manslaughter was substituted on the ground that although the firing of the gun was not D’s willed act nevertheless he was grossly negligent in the manner he held the gun and as Section 24 was “subject to the express provisions of this code relating to negligent acts and omissions” D  was not entitled to the benefit of the section.

The elements of Section 24 were not discussed in this case. It is not clear which limb of the section the court had in mind if any but this was probably unnecessary once negligence was found, for it excluded the application of the section. It is noteworthy that this case treated the offence of manslaughter as an express provision relating to negligent acts and omissions.

According to Prof Okonkwo he submits with profound respect and humility that the propositions which states that the defense of accident will not avail an accused if the act is unlawful or done in an unlawful manner are wrong and do not represent the correct legal position, that the act of D is a willed, deliberate and intentional act is relevant in negativing the first limb of Section 24 where the substance of the charged focus on D’s act whether willed or unwilled, a difference consideration applies. The consideration of the first limb abates and the second limb comes into focus immediately. If though D willed the initiating act but the consequence that eventuated was neither subjectively intended nor subjectively foreseen nor objectively foreseeable then that consequence amounts to an accidental event without the meaning of Section 24 of the Criminal code. The correct interpretation has been given of the section in the majority decision of the court of appeal Enugu division. In Umoru v State,  Nnamah v State.

Now that more cases are coming before the courts, the principles which should guide the application of Section 24  should be properly formulated and a pronouncement made by the Supreme Court in this regard to guide other courts in dealing with this section.
The indigenization of Nigeria criminal laws will be helpful since the criminal code was enacted in 1904 and there has not been any substantial amendment since then.

There is also a necessity for proper law making, offences should be clearly worded and defined.

When this happens certain major conclusions are inescapable

a.      That there is no criminal responsibility for an unwilled act-act referring to the external elements of the offence charged;
b.      There is no liability for the unforeseeable outcome of a willed act;
c.      That the unlawfulness of the act done by D does not preclude the application of Section 24:
d.      That the egg-shell skull rule that you take the victim as you find him does not operate to oust Section 24  when D  by an act which is not dangerous, caused the death of someone with a concealed abnormality
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