CSS 152 MAIN.pdf - National Open University of Nigeria

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CSS 152 INTRODUCTION TO NIGERIA CRIMINAL LAW whether the substantive offence, if committed, was a felony, misdemeanor or simple offence. Furthermore, certain defences are available on charges of assault of more serious harm which result in death committed by public officers or private citizens in preventing the escape of a felon that are not available to other murder. See section 271 and 272 of the Criminal Code. 3.2 The Principle of no Liability without Fault The learned authors, Okonkwo and Naish, submit that all legal systems have to some degree or other incorporated the simple moral idea that no one should be convicted of a crime unless he willed the fault and same attributed to him. An illustration will explain the foregoing. If A kills B; A’s fault of killing B cannot be transferred to his father because there was no fault on his father’s part which will make the latter liable despite the fact that the father has a moral duty to bring up A well just as his child. In order to prove that the accused is liable, it is left for the prosecution to prove the existence or otherwise of mens rea and it is analytical to state that the mens rea doctrine is used to describe the statutory principle under the common law situation, which runs through all offences. SELF ASSESSMENT EXERCISE 1 What do you understand by the principle of liability without fail? 3.3 Sources of the Principle There are two sources to which the principle of no liability without fault could be traced. The first is predicated on English law as a source and the second is anchored on Nigerian law as a source. a. English Law as a Source Okonkwo and Naish have said that in English law, the scope of the doctrine of mens rea (guilty mind) depends on whether a particular crime is a common law offence or a statutory offence. It is worth recapitulating that common law offences derive from the customs and tradition of the English people while statutory offences are those contained in enacted statutes. 26
CSS 152 INTRODUCTION TO NIGERIA CRIMINAL LAW At common law, there is a legal presumption that an accused person is innocent until he or she is proved guilty. An offence requires proof of a guilty mind but if the offence is constituted, there is a factual presumption or presumption of fact that proof of guilty mind depends on whether the statute requires such proof or not. In Nigeria, every offence by whatever mode it is constituted, is a statutory offence and must be written and therefore known to law. The mens rea doctrine was decided upon in the case of Lim Chik Aik v. R (1963) AC 160. In that case, the Judicial Committee of the Privy Council accepted the immortal words of Wright J in the often cited case of Sherras v. de Rutzen (1895) 1QB 918 to the effect that “there is a presumption that mens rea or evil intention or knowledge of the wrongfulness of the act is an essential ingredient in every offence. “But that presumption is liable to be displaced either by the words of the statute creating the offence, or by the subject matter with which it deals, and both must be considered”. But there are certain offences in which mens rea doctrine is displaced in which case it will be said that liability is strict. It is strict because in such offences, the law does not require the proof of mental element or the guilty mind. The proof of actus reus or the guilty act is enough for the conviction of the accused person. Foster Sutton, P. in Amof a v. R (1952) 14 WACA 238 said that in order to determine whether mens rea (that is to say a guilty mind or intention is essential element of the offence charged), it is necessary to look at the object and terms of the law hat creates the offence. b. Nigerian Law as a Source The principle that no person should be punished without being guilty is contained in section 24 of the Criminal Code and it states that: “subject to the express provisions of this code relating to negligent acts and omissions, a person 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.” Under this category, the accused would have acted or omitted to act under a condition which is involuntary…. – i.e. independently of his/her will. This defence is separate from the defence of accident and should be treated as such. The defence comes under the generic term ‘auto 27
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