INTRODUCTION
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.
Conclusion
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