SECTION 24 OF THE NIGERIAN CRIMINAL CODE

EDITED BY: Asykobi

The provision commonly referred as “defense of accident” primarily deals with the mental element of an offence. It is concerned with facts and events which were not intended by an accused.

From the foregoing, the provisions of section 24 of the Criminal Code and 48 of the Penal Code is a very much relevant consideration in respect of any offence; and the duty of proving that a defendant is not entitled to the provisions (i.e. that his act was voluntary) rests with the prosecution. Although the defendant would have to introduce evidence to that effect if he wishes to rely on “defence” of accident but the prosecution must convince the court that the defense does not avail the defendant, see  Maiyaki v State (2008) LPELR-1823(SC).

In this part, we shall attempt a succinct examination of the provisions of section 24 .The analysis will be primarily hinged on the appreciation of the provisions of this section; the wordings of the section will be clearly examined and an attempt will be made to arrive at the true intent of the provision.

For the sake of clarity, the provision of section 24 of the Criminal Code is reproduced:

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. , 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 regards criminal responsibility.

The Scope of the Provision

Before we proceed, it is important to determine the scope of the application of section 24 of the Criminal Code. The criminal code as we all know, applies only to Southern Nigeria, see section 1 of the Code. Section 24 of the Criminal code is contained in chapter 5 of the Code and it applies to all offences in the South by virtue of section 2(4) of the code which provides that

The provisions of Chapters 2, 4 and 5 of the Criminal Code shall apply in relation to any offence against any Order, Act, Law, or Statute and to all persons charged with any such offence.

The import of the above section 2(4) is that section 24, which is contained in Chapter 5 of the Code, applies to even offences outside the code—provided that such offences are in Southern Nigeria.

We shall now proceed to a step by step consideration of the wordings of the section

Negligent Acts and Omissions

The first paragraph of the section expressly subjects the provision of the section to any other provision of the Code which has negligence as an element. The import is that the express provisions of any section in the code which has negligence as an element cannot come under the provisions of section 24. A ready example is road traffic offences. If a person drives negligently and kills a road user, it is immaterial that he did not intend the consequence; he cannot plead section 24. See Moses v State 2006 LPELR 1915(SC) where the court quoted Hill v. Bexter (1958) 42 CAR 42 at 58, Lord Goddard, L.C.J, described dangerous driving (which resulted to manslaughter), as an offence of absolute prohibition into which no mens rea enters and that it is no answer to say, “I don’t mean to drive dangerously”.  Also in Amusa v State 2003 LPELR-474(SC)   per Onu JSC:”In Road Traffic Offences, the slightest negligence on the part of the appellant is sufficient to sustain a conviction”.

An issue may arise as to whether section 24 applies to offences which are outside the code and which has negligence as an element of such offence, bearing in mind that section 24 only subjects itself to “express provisions of the code”? We humbly submit that if a later provision (a provision later in time to section 24) has expressly made negligence a requirement of an offence, then it will override the provision of section 24 and it will apply as if “it is an express provision in the code”. This position is supported by the canon of interpretation: generalibus specialia dorogant (i.e. special things derogate from general things) see Madumere &anor v. Okwara &anor. (2013) LPELR-20752(SC).

We will also state that the fact that an act is unlawful does not without more, deprive a defendant from benefiting from the provisions of section 24. For e.g. if “A” merely slaps “B”  (Criminal assault which is unlawful) and “B” slumps and dies as a result of an abnormality which was unknown to A. the mere fact that the act of slapping B is unlawful will not deny “A” from relying on section 24 because B’s death was not foreseeable and not reasonably foreseeable. This view finds support in the clear wordings of the section. It is a sound canon of interpretation that the express mention of a thing excludes that not mentioned. Thus, we cannot possibly remove unlawful acts from the application of the section.

Having determined that negligent acts or omission can be expressly displaced from the provision of section 24, and that the provisions does not discriminate against unlawful acts, we shall now proceed to consider what many has classified as the “limbs” of the provision, and which we shall  for the sake of convenience, adopt.

The First limb

“A person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will”

The act in question here must be an act which the law regards as a crime. It connotes the external elements of the offence. The act in context is not the mere physical act but a criminal act. Omission here must also be criminal omission. Criminal omission occurs when a person who is legally bound to perform a duty intentionally fails to perform that duty.

Before a person can be criminally responsible for an act or omission, the act or omission must be intentional, negligent or reckless. He can only be criminally responsible if he is fully aware of all the surrounding circumstances.

In the locus classicus of Thimbu Kolian v. the Queen,(1968) 119 C.L.R 47,the defendant, in the dark aimed a moderate blow at the nagging wife, unknown to him, the wife was carrying their child, and the blow landed on the child and killed it. The court held that the striking of the child was not the defendant’s willed act as it occurred independently of the exercise of his will

Windeyer J held:

“The wielding of the stick was a physical act done in response to a mental stimulus, it was in every sense willed, but it was willed as a blow to the woman and not at the child”

The Second limb

“An event which occurs by accident.”

Chambers Executive 21st Century Dictionary defines an event as “something that occurs or happens: an incident, especially a significant one.

From the wordings of section 24, it is clear that the event contemplated must be a result of a willed act. In Thimbu Kolian v The Queen, Windeyer J also stated that “an event in the context refers to the outcome of the accused, for a man cannot be responsible for an event which he had no part at all”…

What can be deciphered from the foregoing is that “event” as contemplated by section 24 refers to outcome arising from the willed acts of the accused and not an event which he has no part in e.g. an act of God

An event is a consequence of an act e.g. death, in some cases, there might be some confusion between an “act” and “event” e.g. in Timbu kolian’scase the Justices were divided as to which limb of section 23 of the Queensland Code (our Section 24) applies. Okonkwo (Nigerian Courts and Section 24 of the Criminal Code, Law Monograph Series 1) submitted that in resolving such confusion, the test is to ascertain the focus and substance of the charge. E.g. if a person is charged for the outcome (e.g. death resulting from assault) then the second limb would apply but if the charge is for the act directly done, and no more, (e.g., assault) then the first limb would apply.

There really seems to be no hard and fast rule in distinguishing an “act “from an “event”, some scenarios might blur the distinction. But whenever a person is charged with causing death (murder or manslaughter) the second limb should apply since death—an event, cannot be an act.

In some instances, the defendant might have achieved his willed act, but something else occurs which is not intended by him. E.g. if Mr. A, merely  intends to give Mr. B a “dirty slap” and Mr. B unexpectedly falls as a result and hit his head on a sharp stone and dies, the death of Mr. B in this illustration is an event which will come under the second limb. This conclusion will also apply to cases where unknown to the defendant, the victim has some inherent peculiarities e.g. hemophilia, and the event would not have occurred but for the abnormal peculiarities which was unknown to the defendant cf R v Martyrs, (1962) Qd. R. 398, where the court incorrectly applied the egg-shell skull principle.

Accidental event was defined in Nnamah v. The State (2005) 9 NWLR (Pt. 929) 147, as “one that is not intended by the actor; It is not foreseen by him and is not reasonably foreseeable”. It is an event which occurs outside anyone’s purposeful act and it not foreseeable or reasonably foreseeable. The test of foresight is objective. See Araremor v Sate (2014) LPELR-22591(SC) where the court held that the event must be a surprise to all sober and reasonable persons.

Some statutory exceptions to the section

A person may however be liable for an act not willed by him. Sections 8 (offences committed in prosecution of common purpose) and 9 of the Criminal Code (counseling another to commit an offence) provides for parties to an offence. Every party is liable as the principal offender for any act done in pursuance of the common intention even though the act is unwilled by any of the parties but provided that it is foreseeable. Same also applies to one who counsels the commission of an offence. E.g. if a gang of armed robbers had agreed not to kill anyone during their operation, but one of them gets paranoid during the robbery and murders a person, it is immaterial that the act was not willed by the others. This is so because death is a probable consequence of armed robbery OR when Chief Badman procures “A” to go and beat up Chief Goodman his political rival and “A” ends up killing Chief Goodman in the process, it is immaterial that Chief Badman did not intend Chief Goodman’s death provided that the offence committed (murder) is a probable consequence of offence counseled (assault).