GENERAL PRINCIPLES OF LIABILITY
Chapter V of the Nigeria Code is headed ‘Criminal Responsibility’. Chapter V of the Queensland Code has the same heading. The contents of the two chapters are the same; the wording is almost identical; even the marginal notes are the same.
Many questions will of course at once occur to my readers, as they have occurred to me. Has interpretation in the Courts of the two territories proceeded on parallel lines? If not, why not? How much case law is to be found? What degree of persuasive authority is accorded to decisions of the Queensland Supreme Court? Are decisions of the High Court of Australia on the interpretation of the Queensland Criminal Code usually followed in Nigeria?The answer to these questions I will leave to the end. Meanwhile, I invite your attention to some of the detailed provisions of Chapter V of the Nigeria Criminal Code. Almost all of them are statements of general principle. I will omit the sections which deal with (a) the liability of judicial officers, (b) offences by partners and members of companies with respect to partnership or corporate property, and (c) die liability of husband and wife for offences committed by either with respect to the other’s property.
22. Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
23. A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
24. 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 in 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.
25. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
In a letter to the Attorney-General which accompanied the submission of the draft Queensland Code, Sir Samuel Griffith said: ‘No part of the draft Code has occasioned me more anxiety, but I may add that I regard no part of the work with greater satisfaction.’ He was referring to the whole of Chapter V. The particular sections I have quoted he seemed to regard as embodying the common law, except part of section 24 which was taken from the Italian Code. Certainly at first sight these provisions appear on the face of them to correspond generally with English law. The rules as to ignorance of law and mistake of fact bring to mind the famous cases of Wheat1 and Tolson? I must confess that as a law student I could not understand them at all. Later as a teacher of law I tried to explain them but had little confidence in what I was saying. Today, I am able to say, with no sense of shame, that I think it is a waste of time to attempt to reconcile the irreconcilable, and if text-writers would cease to quote these cases the Judges would cease to discuss them and they might safely pass into oblivion. I am comforted by the words of Latham, C.
J., of the High Court of Australia, who said that any suggested reconciliation between Wheat and Tolson was based on wrong premises. That was in Thomas v The King?Let us see how these identical provisions have been interpreted in Australia and in Nigeria. Griffith made it quite clear when he submitted his draft that he intended to introduce the doctrine of mens rea into Queensland law. Some years later he had the delightful task of interpreting his own work judicially. This is what he said as Chief Justice: ‘Under the law of Queensland, as defined in the Criminal Code, it is never necessary to have recourse to the old doctrine of mens rea... The test now to be applied is whether the prohibited act was or was not done accidentally or independently of the exercise of the will of the accused person.4 The doctrines of the common law were in essence flexible, and in the process of codification it is inevitable that the written
* (1921) 2 K.B. 119. 2 (1-889) 23 Q.B.D. 168. 3 59 C.L.R. 279.
Wtdgee Shire Council v Bonney, 4 C.L.R. 977. form should produce a certain rigidiy and so lead to some change. In more recent cases, McCawley, J., in the Queensland Supreme Court, seemed to think that if the question arose whether the mens rea doctrine should be read into a particular statutory provision, the answer should be the same as that which would be given by the common law.1 A similar approach was made by Webb, C.J.2 On the other hand, in the same cases Real, J., and Philp, J., both took the view that the problem could only be solved by an examination of the specific provision of the code in each case according to the ordinary rules of construction and without recourse to common law doctrine. The present tendency seems to be to get right away from the mens rea doctrine.
What is the attitude of the Courts in Nigeria on identical provisions of the Code? Look at the Index to the decisions of the West African Court of Appeal and you will not find the phrase mens rea. You would also look' in vain for it in the Index to the Federal Supreme Court Reports. Perhaps half a dozen cases could be found.in the decisions of i Courts of first instance, especially customs cases, where the phrase is used, but there would be little more than a passing reference to the English doctrine with an unquestioned acceptance that it was applicable. Whether it is applicable in interpreting the Code or not seems to be undecided, if indeed it has been considered at all. Perhaps some enterprising Nigerian lawyer will study the Queensland cases and argue the point. At all events it should open up a fruitful line of inquiry.