THE DEFENCE OF MISTAKE IN NIGERIAN LAW
THE DEFENCE OF MISTAKE IN NIGERIAN LAW
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Date
2014-03-03
Authors
POTISKUM, ABUBAKAR MOHAMMED
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Abstract
The importance of Criminal Law as a vehicle for
the advancement of humanity cannot be over emphasised.
"This is the law on which men place their
ultimate reliance for protection against
all the deepest injuries that human conduct
can inflict on individuals and
institutions."1
This, then, is the basis for the definition of offences
and the stipulation of corresponding punishments. In
attendance with this, is the recognition of certain
defences to criminal responsibility.
In order to secure a conviction against an accused
person, two basic requirements of criminal liability
must be established - first the physical conduct (actus
reus), and secondly, the state of mind (mens rea) of
the accused person must be legally blameworthy. The
defence of mistake falls within the category of
defences which negative mens rea. If due to some
mistaken belief, the accused person is incapable of
possessing such a blameworthy state of mind, he should
not be held criminally responsible.
It was observed as far back as 1897, that:
"... the absence of mens rea really consist
in an honest and reasonable belief
entertained by the accused of the existence
of facts which, if true, would make the act
charged against him innocent."2
1. Wechsler: The challenge of a Model Penal Code.
2. Dank of New South Wales v. Piper [1877] A.C. 383.
The plea of mistake may be raised either alone or
with similar defences to criminal responsibility.
Particular attention is observed in homicide cases
where the life of the accused is at stake. The Supreme
Court in Kuvawa Takida v The State, 3 held that, all
the defences which are available to an accused person
on evidence, should as a matter of course, be
considered by the courts, whether or not such defences
are raised specifically by the accused or by his
counsel.
Organisational Structure
The thesis is divided into seven chapters.
Chapter I is the introductory chapter and it contains
an account of the historical background and origin of
the Penal and Criminal Codes. The relationship between
the two Nigerian codes and their relationship with
other Legal systems is also examined.
Chapter 11 examines the early period in English Law
when mistake came to be one of the early defences
recognised, as not being compatible with the existence
of mens rea. Thereafter, the development of the
defence viz-a-viz the requirement for mens rea is
traced, pointing out the difficulties in the area of
mistake of mixed law and fact. The requirements for
the plea of mistake are analysed and the critique and
public policy behind them stated.
Chapter III is a detailed study of the application of
the defence of mistake in the Nigerian Codes. The
controvertial issue of "reasonableness of mistake" is
treated at length, pointing out the conflicting
viewpoints of experts and the practice of the courts in
this regard. The chapter seeks to identify
inadequacies and shortcomings in the law, and attempts
to discover the reasons behind them.
Chapter IV is devoted to an extensive and indepth
analysis of the defence of mistake based on the
supernatural; in the form of witchcraft, juju, ghosts,
voodoo and the like. Particular attention is given to
the issue of reasonableness of the belief, or the
action following the belief, in an attempt to discover
any hidden motive that may be haboured by the accused
person. The merit or otherwise of the notion that
prevalence of the belief in witchcraft is enough
evidence for its acceptability is explored. Judicial
authorities from several jurisdictions with varying
socio-cultural setting are examined, in an attempt to
discover any trend in this mysterious and topical
phenomena.
Chapter V is an account, of some related defences to
mistake. An attempt is made to highlight the
application of common concepts to the defences, and
areas of differences are noted. These defences include
private defence, insanity, provocation and bona fade
claim of right.
Chapter VI is an investigation of the application of
the defence of mistake in other jurisdictions,
particularly, India and the Sudan. Attention is paid
to common grounds with the position in Nigeria, and
these are duly specified. Areas of differences are
also pointed out.
Chapter VII, the concluding chapter, summaries the
thesis and the conclusions drawn therefrom. The
researcher's recommendations and proposals for reform
are stated here. These are respectfully submitted with
a view to rectifying some of the patent defects now
existing in the law.
Description
A dissertation submitted to the Postgraduate School,
Ahmadu Bello University, Zaria in partial fulfillment
of the requirements for the degree of:
MASTER OF LAWS (LL.M.)
DEPARTMENT OF: PUBLIC LAW
FACULTY OF: LAW
AHMADU BELLO UNIVERSITY, ZARIA.
Keywords
DEFENCE,, MISTAKE,, NIGERIAN LAW.