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9 Aug 2018

August 09, 2018

Recovery of Goods Under Common Law and the Act





Recovery of Goods under the Common Law
Under the common law, the owner’s right to recover the goods from the hirer is unqualified. If there is any slight default in payment, he can take possession of the goods, even without a court order. This worked hardship on the hirer in a lot of respects.
Firstly, the hirer has no right to redeem the goods after a default in payment of instalments. This is regardless of the fact that the default is regarding the last instalment. See Atere vs. Amao 957 WRNLR 176.
Secondly, failure on the part of the hirer to pay the instalment on the particular date constitutes a breach, even though there it is just a one day delay. This entitles the owner to retrieve the goods even if it the default concerns the payment of the last instalment. See Bentworth Finance Nig Ltd vs. Debank Transport Ltd 1968 3 ALR 52.
Thirdly, the hirer has no legal interest in the goods after they have been recovered. This is regardless of the fact that the goods, when sold, might yield a sum which is more than the amount owed by the hirer- Williams vs. UAC Ltd 1937 3 NLR 134.

Recovery by the Owner Under the Act
It is important to note that the most common remedy available is an action in court against the hirer, which the hirer could frustrate the effort of the owner in this regard by absconding with the goods to an unknown destination with the goods being used in a manner detrimental to the goods itself. Recovery of Goods under the Act will also be treated.
Under common law, as we have already discussed, the extremity of the right to repossession and the harshness of judicial interpretation leave the hirer with little or no claim where the owner exercises his right.

The Act has removed the power where the owner can repossess goods at his whim and caprices.
Section 9 (1) of the Act places a restriction on the right of the owner to recover the property otherwise than by action especially where the hirer has paid a relevant proportion of hire- purchase price. For the purpose of this Act what is relevant proportion has been defined as:
           a.      In the case of goods other than motor vehicle its one half
           b.      While in motor vehicle it is three fifths.
If the owner recovers the goods in contravention of the rule then the  hire  purchase agreement  is determined and the hirer and his guarantor are relieved of any liability under the agreement.

It is important to also note that the above provision has no effect where the hirer has exercised his right to terminate the agreement or the bailment. In this instance, the owner can repossess the goods whether the relevant proportion has been paid or not. The position under section 9 of the Act has been established by the courts. In Adesanya v. Balogun & Ors (CCHCJ/11/73), the hirer paid N1,647.00 out of the total hire-purchase price of N1,843.00 and  sued  for damages for seizure of the goods by the owner, without any court order. The seizure was held wrongful, and the court released the hirer of all liability under the agreement.  The court, further ruled that he could recover from the owner the sum N1, 647.00 which he had already paid to the owner. The Act is silent as to what happens where the hirer defaults before the  payment  of  the relevant proportion of the hire-purchase price. It would appear that the common law rule will apply in such an instance.
The statutory restriction imposed on the owner under section 9(1) of the Act protects the goods from repossession not only where the relevant proportion has been paid but also where it has been tendered by or on behalf of the hirer or any guarantor.

Relaxation of Owner’s Restricted Right of Repossession
The injustice of retaking the goods by the owner has been remedied by the restriction on the right of repossession by the owner other than by action after the relevant proportion has been paid or tendered. This restriction received the acclamation of consumers but was widely condemned by owners of goods as radical, ill-timed and retrograde.

The hardship inflicted on the owner by this provision is where the hirer defaults in payment after paying the relevant three fifth of the hire-purchase price and then abscond with the goods to an unknown address, and the owner remedy is an action in court where there is default in payment. Since the whereabouts of the hirer may remain unknown, any action brought by the owner may prove expensive and dilatory. This action drastically reduces the hire-purchase agreement especially in relation to the motor vehicle. The new section 9(5) of the Act has seemingly reduced the hardship on the owner in relation  to the repossession of goods.

Owner’s Obligations under the New Section 9(5)
The new section 9(5) appears to have at first glance relaxed the restricted right of repossession of goods after the payment of the relevant proportion. But the section has not done away with the right of action of the owner. It only lays down some conditions to be fulfilled.

The case of Tabansi (Agencies) Ltd v. Incar Nigeria Ltd (CCHJ/7/74), shows that the introduction of the new section under the amendment Act has not done away with the right of action but that the owner has to fulfill certain conditions before he can invoke section 9(5) of the act. 

The conditions are as follows:

                              i.            Keep the removed goods in his possession and protect them from damages or depreciation.
                                              ii.            Retain them (in any remises he should determine) pending the  determination  of  the case.
                                            iii.            Be liable to the hirer for any damage or loss which may be caused by the removal.
These duties placed on the owner under Section 9(5) must be adhered to strictly for an action under section 9 (1) to succeed. 

In Incar Nigeria Ltd v. Adeyemi (1976) CCHCJ/1127, the defendant bought a motor vehicle from the plaintiffs under a hire-purchase agreement of November 4, 1972. It is being agreed that the hire purchase price of N26, 680.00 was to be paid in twelve instalments, commencing January 30, 1973. The plaintiffs removed the vehicle in August 24, 1974 from a garage where the vehicle was undergoing repairs, at which time a total of N18, 686.76 had been paid, an amount above the relevant proportion, but he was in arrears of May, June and July, 1974. The owner then sold the vehicle after they had sued for arrears and repossession of the vehicle. The defendant counterclaimed damages on the ground of unlawful repossession. The court thereon held that the owner was liable on the counter claim for by selling the vehicle he violated the provisions of Section 9 (5) of the Act and the attendant  consequence  is  provided for under section 9 (2) i.e. the sum of N18, 686  already paid  was to be refunded to  the hirer with cost of N250.


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8 Aug 2018

August 08, 2018

The Hirer's Right of Termination and the Minimum Payment Clause



Under the Common Law

Under the common law, the hirer’s right to determine a hire a purchase agreement was unqualified. No formality was required in order to enable the hirer to terminate the agreement. If the object of desire loses its attraction on closer acquaintance – if faults are developed or defects discovered – if a coveted treasure is becoming a burden and an encumbrance, it is something, surely to know that the transaction may be closed at once…
Under the common law, the owner could make use of the minimum payment clause when the hirer terminated the transaction or he breaches the agreement.

In the case of Associated Distributors Ltd vs. Hall 1938 2 K.B 83, the hirer returned the bicycle he hired after paying just one instalment. There was a minimum payment clause stating that upon termination of the agreement, the hirer would pay half of the total hire purchase sum. The court held that since this was the agreement of the parties and it didn’t amount to a penalty, the hirer has to pay this sum of money.

In the case of Cooden Engineering Co Ltd vs. Stanford 1953 1 QB 86, after the hirer defaulted on the payment of instalments, the owner seized the goods and sued under the minimum payment clause. The clause provided that in the case of termination, the hirer would pay a hundred percent compensation. The court held that this was an instance of a penalty and thus, the minimum payment clause could not be applicable.

Under the Hire Purchase Act
The minimum payment clause is usually for the protection of the hirer. It could assume all sorts of forms. There are also cases of stipulation for payments of a fixed percentage of the hire purchase price or an amount payable by way of agreed depreciation of the goods.

Mode of Assessment of Amount Payable by the Hirer: Section 8 (1) of the Act gives the hirer a right to terminate the agreement. However, the event of termination of the agreement, the hirer is liable to effect a fifty percent minimum payment. If the hirer has paid more than half of the hire purchase, he will not be expected   to bear further financial burden by reason of his terminating the agreement, except such instalments which have accrued as arrears. The assessment of the hired liability under section 8 (1) contemplates that any stipulation with regard to minimum payment clause in the hire-purchase agreement by the parties will be valid, if the amount specified therein is less than the amount payable.


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August 08, 2018

Forms of Hire Purchase Agreement



Formalities Under the Common Law
Under the common law, there was no particular form for a contract of hire purchase. It could be oral or written, with or without seal. However, in practice most hire purchase contracts are in writing in order to adequately spell out all the necessary terms of the agreement.

Formalities Under the Hire Purchase Act of 1965
The hire-purchase agreement, unlike the position under the common law, all hire-purchase agreements which are intended to operate or fall within the provisions of the Act must comply with certain provisions or procedural requirements as to form and content stipulated under the Act. They can basically be categorised into the following.

Written Information on Cash Price of Goods

Before any hire-purchase agreement is concluded, the owner shall state in writing to the prospective hirer, otherwise than in the note or memorandum of the agreement, a price  at  which the goods may be purchased by him in cash.

The Note or Memorandum

Section 2 (2) (a) of the Act states that: “there must be a note or memorandum of the agreement made and signed by the hirer and by or on behalf of all other parties to the agreement.”

In this instance, what is required is that a note or memorandum must be in writing evidencing the agreement, and that it is not necessary for the hire-purchase agreement to be in writing. In commercial practice, hire-purchase is usually evidenced by a standard  form  agreement which  is required to be signed by the hirer, and any other party. Initially, the agreement may be made orally, but within 14days it must be followed by a signed memorandum.

Signature

The hirer must sign personally; The memorandum or note must be signed not only by the hirer but also by the other parties to the agreement while the other party may sign through their agents.


The non-compliance of the above provisions of the law on the formalities of Hire purchase agreement is not fatal to the agreement until it is proved that such con compliance is likely or has resulted into miscarriage of justice against the hire.
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August 08, 2018

Hire Purchase and the Implied obligations of the Owner and Outright Obligations of the Hirer


       
    
Obligations of the Owner
The implied terms have been described as warranty and condition. They bear the same meaning ascribed to them under the Sale of Goods Act. Distinction is however provided in the definition under Section 20(1) where –warranty is defined as a non-essential term, the breach of which entitles the hirerto sue for damages only. Condition is not given a statutory definition
– but by implication, the difference lies in the breach – the hirer is entitled to reject the goods and treat the contract as repudiated.
  1. Delivery of the Goods: It is the duty of the owner to deliver the goods to the hirer when due. The goods must also be delivered in good condition.
  2. Title: Before goods can successfully be assigned to a contract for hire purchase, the owner must have a title to the goods.
  3. Description of the Goods: The owner of the goods must ensure that the goods are delivered according to the buyer’s description. Also, the goods must fit their description.
Fitness and Quality of the Goods: The goods must be of merchantable quality and they must fit the purpose for which they were hired. However, if there is any defect in the property, it should be something that the owner can easily discern. For example, in the case of Anoka vs. SCOA Warri (1955/56) WNLR  the hirer returned a vehicle due to defect in its engine. The court held that the implied term of fitness for purpose would not be applicable here due to the fact that the defect was something which the owner couldn’t easily discern. He couldn’t have ordinarily known of a fault in the engine unless he took the engine apart.
  1. Quiet Possession: The hirer has a right to quiet possession of the goods. The owner is obligated to abstain from unnecessarily disturbing the buyer.
  2. Furnishing Information: There is a general obligation on both parties to always furnish information regarding the hire purchase contract. This information includes things like arrears paid, date of payment, balance remaining etc.
Obligations of the Hirer
  1. Acceptance of Delivery: It is an obligation on the hirer to accept the goods when they are delivered by the owner. If doesn’t he can be sued for non-acceptance.
  2. Duty of care: The hirer has a duty to use the goods in ways that would not occasion damage to the goods.
Payment of installments: This is one of the main functions of the hirer. He has to pay installments for the hirer purchase as and when due. There are a plethora of cases to help support this assertion. In the case of Animashawun vs. CFAO (1960) LLR 113 the hirer defaulted in payment and the owner repossessed the goods. The court held that since the hirer had failed to pay his installments at the required time, the owner had the right to repossess the goods.
  1. Redelivery of the Goods: If the hirer purchase agreement falls through, it is the duty of the hirer to redeliver the goods to the owner.
  2. Duty not to sell the Goods: The hirer has a duty not to sell the goods until the last installment has been paid.
  3. Duty not to act Inconsistent to Owner’s Right: The hirer also has a duty not to act in relation with the goods in a manner that is inconsistent with the right of the owner. He can only do this when the goods have been completely purchased.

          6.   Hirer’s right of termination: The hirer’s right of termination is set out in section 8 of the Act. it provides that a hirer  shall,  at any time, before the final payment under a hire-purchase agreement, be entitled to determine the agreement by giving notice of termination in writing to any person entitled or authorized to recover any sum payable under the agreement.
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August 08, 2018

Commercial Law and Carriage by Sea



The law relating to contract of carriage is today becoming increasingly important in international trade. The most important aspect of the law of carriage is the carriage of goods by sea, and it is the main point of discussion in this unit. The role of the common carrier, his duties and liabilities as well as the laws relating to the carriage of goods by sea. The Hague Rules as it relates to the carriage of goods by sea shall also be discussed. There are two types of carriers in the carriage of goods by sea. They are private and common carriers. Download the Carriage by Sea Act via this link.

Common Carrier
A common carrier is one who is engaged in the trade of carrying goods as a regular business, and also holds himself out as ready to carry for anybody who may wish to employ him. In Great Northern Railway Co. v. L.E.P. Transport and Depository Ltd (1922) 2 K.B 742, the court held that a common carrier is a person who undertakes to transport from place to place, for hire, the goods of such persons as he think fit to  employ him.
A common carrier may also operate with respect to a particular class of goods so long as he undertakes to carry for everyone. In Ingate v. Christie (1950) 3.C and K 61, the defendant had the word lighterman posted up over the door of his office. It was established in evidence that he carried for anyone who engaged his craft.  It was held that he was a common carrier.
Duties and Liabilities of the Common Carriers
The provision of common law as it relates to liability of the common carrier was absolute in relation to the safety of goods entrusted to him. A common carrier is the insurer of the safety of the goods carried and therefore he is liable for any damage to or loss of them, whether occasioned by his negligence or not. For this reason, he needs to exercise proper care and skill in carrying out his duty, such duties may be summarized as follows:

a.      The duty to accept and carry goods offered to him, in the absence of lawful excuse and to charge no more than a reasonable price. The duty to carry implies that the carrier must not necessarily deviate from his customary route, and if he does so,  he may be liable for deviation and become responsible for all losses.
b.      Duty that the goods are safe, for he is an insurer of the goods.
c.      To deliver the goods to the consignee at the place to which his is directed, otherwise he will be liable with misdelivery or conversion.
It is important to note that there are exceptions to the common position they include:
           i.            Act of God: this as the first exception is that the ship-owner is not responsible for loss or damage resulting from an ‘Act of God’. Before an act will qualify as an Act of God, it must fulfill the following conditions stated in Nungent v. Smith (1876) 1C.P.D 423, Any accident as to which a common carrier can show that it is due to natural causes directly and exclusively independent of human action, and it could not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him.
         ii.            Kings Enemies: these are acts done by states or peoples with which the sovereign may be at war, at any time during the carriage of the goods.
     iii.            Inherent Vices: goods susceptible to damage or tendencies to easy deterioration; a carrier is not responsible for a loss or damage which has resulted from an inherent defect of the thing carried. See Nungent v. Smith (Supra).
There are situations where the common carrier exceptions do not apply. These are:
           i.            Negligence: A carrier will be relieved from liability for damages to the goods arising from an act or omission on the part of the consignor.
         ii.            Deviation: Where the expected causes have occurred upon a departure from the proper prosecution of the voyage, as where  in the course of a deviation, the ship  is lost by an Act of King’s enemies, the shipowner is not excused unless he can show that the loss must have occurred even if there had been no deviation.
       iii.            Unseaworthiness: The shipowner remains responsible for loss and damage to the goods, if the ship was not in a seaworthy condition when the voyage was commenced and if the loss would not have arisen but for that unseaworthiness.

The Hague Rules on Carriage by Sea
It is an international regulation, aimed at reconciling the interests of shipowners, cargo owner and insurers alike. The basic aim of the Act is to relieve a shipowner from his common law absolute liability. He is therefore liable only for negligence and is granted certain immunities. 

The major provisions of the Act are as follows:
a)     There shall no longer be any implied warranty of seaworthiness, except the  carrier is expected to exercise due diligence to make the ship seaworthy at the beginning of the voyage.
b)     The carrier must properly and carefully load, handle, care and discharge  the goods carried.
c)      And he must issue an appropriate Bill of Lading after loading of the goods.

d)     Removal of the goods at the port of discharge into the custody of the person entitled to delivery is prima facie evidence that the goods have been delivered as described in the bill of lading.
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August 08, 2018

Other Related Defences in Criminal Law



In criminal law, all acts or omissions which amount to crimes are not punished at all times. There are situations in which due to the circumstances of the case, some defences can be raised to free the accused from criminal liability. There are a number of these defences. However, due to constraints of space and time only a handful of them would be discussed. The defences to criminal liability which would be discussed include the following:

                 1.      The defence of Alibi
2.     Self-defence
3.     De minimis non curat lex:
4.     Accident
5.     Mistake
6.     Bona fide claim of right
7.      Necessity and extra ordinary emergency
8.     Judicial
      
      The defence of Alibi
Alibi is a latin word meaning “elsewhere” That is the accused person was not at the scene of incident. It is a defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time.
The defence seeks to persuade the court that the accused could not possibly be at the scene of the crime as he was somewhere else. At a place where most probably there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime.

The Supreme Court affirms in Gachi v. The State (1965) N.M.L.R. 333 at 335, that;
“The word “alibi” means ”elsewhere” and since it is a matter peculiarly within the knowledge of an accused person, if he was at some particular place other than that where the prosecution says he was at any material time, what has been called the ‘evidential burden’, that is, the burden of adducing or eliciting some evidence tending to show this, rests on him (The accused)”

Thus the accused is expected to raise it timeously (early) and probably have people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime.
“It is a well-established principle of law that once an alibi has been raised the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt –Adedeji v.The State (1971) 1 All N.L.R. 75., where the prosecution fails to investigate an alibi timeously raised, the court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt.

For a plea of Alibi to be successful, the defence must show inter-alia as established in the case of LLODIGWE V. STATE (2012) 18NWLR (PT 1331) 1S.C  that ;
  1. The accused person was so separated by distance from the scene of the crime that ordinarily he could not have travelled from where he alleged he was to the scene of the crime
  2. Though the accused person was within a short distance to the scene of the crime, he was physically prevented from approaching the scene of the crime by an external force or by ill-health as certified by a medical doctor.
When successfully made, the defence of Alibi is a complete defence which has the capacity to totally exonerate an accused person from the charge preferred against him.

Self defence
This defence means that the accused person did the act while in process of defending himself but with no intention to kill or cause grievous bodily harm. Such a defence, where it avails an accused person, justifies or excuses by law the act or omission of the accused thereby rendering him not liable for the offence charged. It is usually a complete defence to the charge where it is upheld. The sum total of this is that where the defence of self-defence succeeds, the accused person must be discharged and acquitted because he was at the time of killing in reasonable apprehension of death or grievous bodily harm, and felt that it was necessary at the time to use the force which resulted in the death of the deceased in order to preserve himself from danger. PER OKORO, JSC  AHMED SHEIDU VS. THE STATE.
Thus we can rightly say that the defence of self-defence is open only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm, But he is entitled to use such force to defend himself from the danger.

“For a successful plea of the defence of self-defence by an accused person charged with the offence of culpable homicide punishable with death under the penal code, the following must be established by credible evidence:

1. That his life was actually threatened or endangered by the acts of the deceased;
2. That the only option that was opened to him to save his or her life was to use force which was necessary on the deceased at the material time;
3. That the amount of force used on the deceased was proportionate to the threat or danger posed by the acts of the deceased;
4. That he did not take an undue advantage of the deceased in the process of saving his own life from the danger or threat posed by the deceased;
5. Show that he did not want to fight and that he was at the material time prepared to withdraw from the danger posed to his life by the deceased.

Where a plea of self-defence is successfully raised, it completely absolves the offender from criminal responsibility.



The Defence Of De Minimis Non Curat Lex
The latin maxim de minimis non curat lex literally interprets to mean that the law does not concern itself with trifles. As a defence in criminal law, where an offence is so trivial, it can be used as a defence. The statutory backing for this defence is not in the Criminal Code. It is however in S. 58 of the Penal Code which provides: “nothing is an offence by reason that it causes or that it is intended to cause or that it is likely to cause an injury if that injury is so slight that no person of ordinary sense and temper would complain of the injury.’’
As a result, if someone is charged to court for stealing a pen worth 20 Naira, this defence can be utilised to escape liability.

The Defence of Accident
According to the provisions of S. 24 of the Criminal Code, a person is not criminally responsible for an act that occurs independently of the exercise of his will or if it occurs by accident. However, this is subject to the provisions of the Criminal Code in relation to negligent acts and omissions. In the case of Iromantu vs State (1964) 1 All NLR 311, the deceased grabbed a gun from the accused. In the struggle to collect back the gun, the accused mistakenly touched the trigger and the gun went off, killing the deceased. The court held that the accused was not criminally liable since the act occurred independently of the exercise of his will. It should however be noted that accident would not apply if it is reasonably foreseeable that the criminal event would occur.
In the case of State vs Appoh (1970) 2 All NLR 218, two boys were pushing themselves near the river. While doing this, they were warned by another boy that the two boys were playing a dangerous game. As they continued, one of the boys pushed the other into the river and he drowned. The court held that the defence of accident would not apply since it is reasonably foreseeable that pushing near a river could lead to drowning.
In the case of Ukot vs State (1992) 5 NWLR pt 240, the accused swung a pen knife in a crowd in order to escape. While swinging the knife, it hit someone and killed him. The accused pleaded accident but the court did not grant his plea because it was reasonably foreseeable that by swinging a pen knife in a crowd, the knife could hit anyone.
The Defence of Mistake
The defence of mistake applies to a mistake of fact. This is embodied under S.25 of the Criminal Code. It provides that a person who acts or refuses to do an act under a reasonable but mistaken belief in a state of affairs, is not criminally responsible. However this would apply if, had the mistaken facts being true, the act would not be criminal.
Before the defence of mistake can be successful, the following must be fulfilled:
a)     It must be a mistake of fact and not of law.
b)     The mistake must be honest and reasonable.
c)      There would be no greater liability if the mistaken facts were found to be true.
Mistake of Fact not of Law
According to the provision of S. 22 of the Criminal Code, Ignorance of the law is not an excuse to criminal liability unless the the law creating the offence states knowledge of the law to be an element of the offence. This is encapsulated in the maxim ignoratia juris non excusat.
In the case of Sherras vs De. Rutzen (1895) 1 QB 918,  the accused was held not to be liable under S. 16(1) of the Licensing Act when he served beer to a police officer who he thought was off duty since he wasn’t wearing his uniform. The above case is a mistake of fact not of law since he thought the officer was off duty.

The Mistake must be Honest and Reasonable
For the defence of mistake to apply, the mistake must be one that is honest and reasonable. In the case of R vs Gaddam (1954) 14 WACA 442 the accused killed an old woman who he believed was a witch. The West African Court of Appeal held that this belief was unreasonable and thus a mistake of fact would not be applicable.

 There would be no Greater Liability if the Mistaken Facts were true
For the defence of mistake to hold, if the mistaken facts were actually true, there wouldn't be liability. For instance in the case of R vs Gaddam as stated above, even if the deceased was actually a witch, killing her extrajudicially was still a crime, thus the defence of mistake would not apply.

 It should be noted that there are instances in which the law states that the defence of mistake would not apply. For example, according to S. 233 of the Criminal Code, if a person has sex with a girl under a specific age, it is not an excuse that he did not know or he believed that she was under such age.

The Defence of a Bonafide Claim of Right
This defence is contained under the provision of S. 23 of the Criminal Code. This section provides that a person would not be criminally liable for an act or omission done in relation to property in the exercise of an honest claim of right over the property and without an intention to defraud.
The scope of property in this provision has been defined by the provision of S. 1 of the Criminal Code which defines a property as everything animate or inanimate capable of being the subject of ownership. This covers all kinds of property, including land.

In the case of R vs Vega (1938) 40 WACA, the accused was prosecuted for stealing some corrugated iron sheets which were lying around. The accused raised the defence that he took the sheets on the honest belief that they had been abandoned since they were lying there for a long time. The court acceded to this defence.

The Defence of Necessity and Extraordinary Emergency
This defence is contained under the provisions of S. 26 of the Criminal Code. This section provides that except in the case of compulsion, provocation or self-defence, a person would not be liable for acts or omissions which would result in an offence if such acts or omissions were done in sudden circumstances of extraordinary emergency that a normal person would not have acted otherwise.

It should be noted that this defence has limitations. In the case of R vs Dudley Stephens[2], two shipmen were stranded at sea with a cabin boy. In order to sustain their life, they killed and ate the cabin boy. They court convicted them but their imprisonment was reduced to six months because of the necessary nature of situation.

Generally, judicial opinion doesn’t favour the taking of a person’s life for the satisfaction of necessity. In the case of Buckcoke vs Greater London Council 1971 All ER p 254  a fire truck driver, in an attempt to rescue a man from a burning building, disobeyed the traffic light, causing injury to another person. Lord Denning held that the fire truck driver was liable for the injury. It should be noted that in this case of the fire truck; the situation was not to the extent that the driver had no other choice to make as provided for in S. 26 of the Criminal Code. This is probably the reason why his defence of necessity could not hold sway.  

 Judicial Officers and the Execution of the Law
A judicial officer has been defined in S. 1 of the Criminal Code to include the Justices of the Supreme Court, Court of Appeal, Federal High Court, State High Court and an administrative officer engaged in a judicial act, proceeding or inquiry.
According to the provision of S. 31 of the Criminal Code, except as provided by the Criminal Code, a judicial officer is not criminally responsible for acts done or omitted to be done by him in exercise of judicial functions.

In the case of Anderson vs Gorrie (1894) 1 QB 668 it was held that no criminal action could be brought against a judge of a superior court in respect of an act done by him in his judicial capacity even if there is evidence that he acted maliciously.
Also, S. 32 (1) provides that a person would not be criminally liable for any act or omission that is done in execution of the provisions of the law.
However, according to the provision of S. 32 (4) of the Criminal Code, this would not apply to acts or omission which would result in death or grievous bodily harm.


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August 08, 2018

The Defence of Provocation


Definition and Nature of provocation
Provocation and the defence of provocation are defined in the Criminal Code. In some jurisdictions like the United Kingdom and Ireland, provocation is a defence only available for the offence of murder. In Nigeria, however, provocation can be a defence for assault as well as for murder.

Basically, the defence of provocation in criminal law is a concession to human frailty. The law understands that sometimes, people can be pushed to the wall and overcome by such passion that in the moment where they are provoked and react to that provocation, they are not in control of themselves, and we excuse them for that momentary weakness because, after all, we are human with emotions.

The term provocation as 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 Criminal Code.
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 Criminal Code.
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 heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only - Section 318,Criminal Code.
The provisions of the criminal code as stated above did not define the term “provocation” They merely attempted to explain it.

Elements of Provocation
The following may constitute the elements necessary in establishing the defence of provocation:
a.       the provocation was offered to the accused
b.       Capable of depriving the ordinary man of his power of self control.
c.       Accused was actually deprived of his power of self control.
d.      Accused acted on the sudden and in the heat of passion without cooling time.
e.  Unreasonable or excessive force was used, or the means of retaliation was appropriate.

Examples of words or acts to which the defence of provocation has succeeded are as follows:
a.      Wife telling her illiterate and primitive husband that hwe was impotent and for that reason, he has been committing acts of adultery with other men, R v Adekanmi (1944).
b.      Wife, taunting her husband with his impotence and spitting on his face, R v Igiri (1948).
c.       Deceased stabbing the appellant, Mensah v King (1945).
d.      Wife saying her illiterate husband and a dog were the same, Ruma  v Daura N A (1960).
e.      Wife calling her husband a slave, Edache v The Queen, (1962).
f.        Deceased suddenly gripping the throat of th3e appellantduring a dispute, R v Josiah Onyeamaizu,(1959).
The defence of provocation can succeed only if the effect of abuse or insult would cause a reasonable man to lose his self-control and also that the accused did actually lose his self-control consequent upon the provocation
In criminal law, words alone may not amount to constitute provocation. But the court has held that that in some particular cases they can. Much would depend on the words used and what they mean, having regard to the custom or background of the person son whom the words are used.

Provocation in Murder
In relation to murder, Devlin, J described provocation as some act of series of acts, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or  her for the moment not master of his mind - R v Duffy (1949).
The important element of what constitutes provocation is that the act leading to death must be shown to have been done “in the heat of passion caused by sudden provocation and before there is time for his passion to cool.”

In Bedder v DPP (1954), the accused was sexually impotent. He tried unsuccessfully to have intercourse with a prostitute. She thereafter jeered at him, and also kicked him causing him to lose self-control, whereupon, he stabbed her twice and killed her.
On a charge of murder, the accused pleaded provocation and the House of Lords upheld the direction that the proper test was the effect which the conduct of the prostitute would have on an ordinary person, not on a sexually impotent person.
The mode of resentment must bear a reasonable proportion to the provocation offered –a fist blow for a fist blow, not a savage attack with a lethal weapon in return for a mere vituperative abuse


Where the defence of provocation is successfully established, the offence of murder is reduced to manslaughter.
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