BONA FIDE CLAIM OF RIGHT AS A DEFENCE UNDER THE NIGERIAN CRIMINAL JURISPRUDENCE

By Alkali Ibrahim Ahmed (Barr.)*

1.0 INTRODUCTION:

The burden of proof in every criminal trials lies on the prosecution generally. In a situation where the general onus lies on the prosecution to prove a case, failure to prove any of the ingredients of the offence, will in no doubt, affect the outcome of the trail even if the accused person kept mute without uttering a word in the trial.

The reason why failure to prove an ingredient of an offence can affect the trial of the case is that, the standard of proof expected of the prosecution is, ‘proof beyond reasonable doubt’. The West African Court of Appeal held in the case of R.V. Ani & others1 “where there was evidence of fight between two persons and no evidence, one way or the other, as to what actually happened leading to the death of one of them, the benefit of doubt thus created must be given to the accused.”

The criminal justice system put too much weight on the prosecution under the guise of “Proof beyond reasonable doubt” although this does not mean proof beyond any rota of doubt.

Another issue that places difficulty on the part of the prosecution to prove his case is the proof of the elements of the offence in addition to the ingredients. These elements are Actus reus and mens rea. The mere fact that an accused person has done on unlawful act is not in itself sufficient to hold him responsible criminally, provided that the intent and the knowledge is not there or when the mind does not follow or comprehend the act, except in strict liability.2 Those factors negativing intent are defence to criminal liability under the Nigeria criminal jurisprudence. Other defences includes: mistakes,

1* Research Fellow, National Judicial Institute, Abuja. (1944) 10 WACA 222 Ola, C.S. Criminal Responsibilities and defences under the Nigerian Law, CS Ltd (2001) pg 172

provocation, insanity, bona fide claim of right which is our topic of discussion in this paper e.t.c.

1.1 HISTORY

The history of the defence of bona fide claim of right in criminal responsibility is not unconnected with the history of general defences in the criminal liability. The general concept of liability in criminal law is based on the fact that a man is a free agent and must be held responsible for his actions.3 This connotes that a man intends the natural consequences of his act and therefore must be held accountable for them.

However, there are instances whereby a person can be exonerated from liability either partly or wholly despite his action constitute all the requisite elements to hold him responsible.

The most important issue also is that, a person cannot be proceeded against unless he is given the opportunity to defend himself.4 This is expressed in Latin maximum as Audi Alteram paterm. It is one of the principles of ‘National Justice’ which is an old principle in Nigerian criminal justice. This principle gives the accused person right to defend a charge against him.

But it should be noted that, no defence is recognised in Nigerian criminal justice except such a defence is written in our laws and recognised as such. The defences to criminal liability are therefore not imaginary in nature.

The defence of ‘Claim of Right’ is therefore not an exception to this rule. In Kenya for example this offence (claim of right) is provided under section 8 of the Kenya’s penal laws, cap 36.

The defence of ‘Bona fide Claim of Right’ in criminal jurisprudence is mostly related to the offences committed against property. Bona fide claim of right crops from the principle of bona fide purchaser. This term is used in the law of ‘real property’ to refer to an innocent party who purchases property without notice of any other party’s claim to the title of that property. This principle was not recognised by the common law courts. However, the courts of equity 3 Ocheme, P. The Nigerian Criminal Law, P. A. Ocheme & Associates, (2006) Pg 86.4 Section 36 of the constitution Cap 149, Laws of the Federation of Nigeria, 2004.

relieved the accused person who claims bona fide intentions in their conducts. And they held that, a bone fide purchaser will not be bound by equitable interest of which he/she does not have actual or imputed notice, as long as he/she made such inspection as ought reasonably to have been made. That is why bona fide purchasers are sometimes referred to as ‘Equity darlings’.

The relationship between the bona fide purchaser and the courts of equity were better characterised as being neglect. However, equity still undoubtedly recognises the right of the beneficial owner to claim against the former legal owner where the sale was improper.

2.0 DEFINITION OF TERMS

2.1 BONAFIDE CLAIM

According to Black’s Law Dictionary5 The word ‘Bona fide’ is a Latin word which means ‘in good faith’ ‘without fraud or deceit’ sincere, genuine.

According to Roman law6 ‘Bona fide’ means standard of conduct expected of a reasonable person especially in making contracts and similar actions, acting without fraudulent intent or malice.

The new Webster’s Dictionary of the English Language7 defines the word ‘bona fide’ as thing “made, done offered e.t.c. without any intention to deceive or defraud. Looking at the above definitions the word bona fide centred or two words that is absence of fraudulent intent and deceit or malice.

Claim on the other hand, is to demand as a right or to prove ownership of something.8

“Black’s Law Dictionary”9 explained the word claim as the aggregate of operative facts giving rise to a right enforceable by court. The assertion of an existing right.5 Bryan, A. G. Eighth Ed. Thomson West, United States,(1999) Pg. 1866 Ibid at Pg 1877 Lexicon International Publishers, New York (1994) Pg 1098 Ibid at Pg 1819 Op. Cit. at Pg 264

2.2. RIGHT

The word ‘right’ means something that is due to a person by just claim, legal guarantee or moral principle. Black’s law dictionary10 defined the word ‘Right’ as that which is proper under the law, morality or ethics.

The interest, claim or ownership that one has in tangible or intangible property. It is also a power, privilege, or immunity secured to a person by law.

Right is a correlative to duty, where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without right. In order for a duty to create a right, it must be a duty to act or forbear. Of course it may be a duty to love our neighbour but our neighbour has no right for our love.11 This is because love is neither an action nor forbearance.

2.3 CRIME

The word crime is blessed with the attention of many philosophers in the world, different opinions and perceptions.

Lord Denning who happened to be a moralist sees the word “Crime” as follows

“in order that an act to be punishable (as a crime) it must be morally blameworthy. It must be a sin.”12

But the positivist defined the word crime as ‘whatever act or omission the rulers of the day prescribed by treat or penal consequence.’

The implication of the positivists definition of the word crime is that, although some acts are not abnormal to the average reasonable man yet are made to be or termed as offence while others that are glaringly immoral, yet are not criminal in some jurisdictions e.g traffic offence for the former and incest for the later.

10 Op. Cit. Ai 1347.11 Op. Cit.12 Denning, L.J. The Changing Law 112. In Chukkol, K.S. The Law of Crimes in Nigeria, (1988) Pg 3

The word “Crime” has not been expressly defined by either the criminal code or the panel code but instead they defined the word offence which now used intergangeably with crime.

According to Lord Atkin:13

“The criminal quality of an act cannot be discerned by intention nor can it be discovered by reference to any standard but one, is the act prohibited with penal consequences?

3.0 BONA FIDE CLAIMS OF RIGHT AS A DEFENCE OF CRIMINAL RESPONSIBILITY

A bona fide claim of right is a claim in or with good faith, honestly and sincerely without deceit of fraud. Actually without pretence and made innocently in the attitude of trust and confidence and without notice of fraud.14

It is a defence often raised in the course of criminal trials in defence of property, the accused raises the defence relying on it to exculpate his acts on the land on the ground that he had genuine right to be on the land and to carry out the acts he carried out on the land.15

Sections 19 and 20 of the magistrates court law (1978) cap 67 laws of Lagos State holds a defence of bona fide claim of right as a complete defence when it relates to the ownership and title to land.

A bona fide possessor of a property can also raise the defence of bona fide claim of right in criminal trials. A bona fide possessor is one who not only supposes himself to be the true proprietor of the land, but who is ignorant that his title is contested by some other person claiming a better right to it.

But it is worthy of notice that, ignorance of the law does not afford any excuse for any act of omission which would otherwise constitute an offence unless knowledge of the law is an element of the offence.

13 John, B., Osborn’s Concise Law Dictionary, Sixth Ed. In Ola C. S. Op. Cit.14 Black’s law Dictionary, Sixth Edition, at Pg 17715 Akimbiyi, Sonia, Crimes, Defences and Sentences in Nigeria, Streams Communications, Lagos (2006) Pg. 263.

4.0 UNDER THE CRIMINAL CODE

Bona fide claim of right is a complete defence of criminal liability under the criminal code. Section 23 of the criminal code provides:

“A person is not criminally responsible, as 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”

As I earlier mentioned, a defence of bona fide claim of right is basically on an offence against property. Under section of the criminal code, property is defined to include everything animate and inanimate capable of being the subject of ownership. Therefore, robbery, house breaking, demanding with menaces, obtaining by false pretence, malicious damage, receiving stolen property e.t.c.16 are all within the ambit of the provision.

Going by the above provision of the criminal code (section 23) there are two important element that must be evidenced in the claim, that is, ‘honest belief ‘and ‘without intent to defraud’ for the defence of bona fide claim of right to succeed.

A. HONEST BELIEF

Honest belief means believing in the existence or non existence of a fact without intent to defraud or mislead. Therefore, the test of honest believe in the claim of right is always a subjective one.

The claim is honest only when the accused believed he was dealing with his own property (without intent to defraud) and not that of another.17

B. WITHOUT INTENT TO DEFRAUD

16 Fakayode, E. O. The Nigerian Criminal Code Companion, Etheope Publihsing Co. (1985) 227.17 R. V. Williams & Anor. (1953) 37 Cr. App. Reports 71

Intention to defraud means:-

i. intention to cause unjustified economic, financial or pecuniary loss to another

ii. to deprive another of some property by deceit, or

iii. to induce a man to act to his injury by deceit

Section 388 of the criminal code on the other hand, defined the intention to defraud in the following circumstances, that is, where a person takes or convert a property:

(a) When he has only a limited interest in the property like custody or possession;

(b) When he is only one of joint owners of the property;(c) When the property belongs to a company, a cooperation or a society

of which he is only a member or director; or(d) When the property has already being pledged or mortgaged by him

to another.

In any of these circumstances, even if the accused tries to establish that he is the owner of the property, the defence of bona fide claim of right will cease to avail him from liability.

5.0 UNDER THE PENAL CODE

Prior to the independence of Nigerian in 1960, criminal code was of general application in Nigeria. But the Northern Nigeria which is predominantly a Muslim state felt it unbearable the continuance application of the code in the region since their Muslim law is not practiced as it ought to be. As the result of this the Northern regional assembly came up with the ‘Penal Code’ which came into force on 1st October, 1960.

This code is a replica of the Pakistan penal code, though, some of the provisions are similar to that of the criminal code.

However, unlike the criminal code, there is no clear provision for the defence of bona fide claim of right under the penal code. Once an offence is

committed, the accused person cannot exculpate himself from liability relying on any provision of the penal code to claim bona fide claim of right.

Notwithstanding, there are certain provisions of the panel code from which the defence can be inferred.

Section 174 of the panel code18 provides

“whoever, with intent to prevent any property of himself or any other person or any interest therein

A. from being taken as a forfeiture or in satisfaction of a fine under a sentence which has been pronounced or which he knows to be likely to be pronounced by a court of justice or other competent authority; or

B. from being taken in execution of a decree or order, which has been made or which he knows to be likely to be made by a court of justice, or

C. from being distributed according to law among the creditors of himself or such other persons, or

D. from being available according to law from payment of the debts of himself or of such other person, dishonestly or fraudulently removes or conceal or assists in removing or concealing such property or dishonestly or fraudulently transfer, delivers or releases such property or any interest therein to any person or practices any deception touching the same or accepts or dishonestly or fraudulently accepts, receives or claim such property or any interest therein, knowing that he has no right or rightful claim thereto, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.

In the above provision, despite the fact that the property belongs to the accused person he is not allowed to use the property in contravention of the order of the court or any authority concerned. But interestingly, the code used the words fraudulently, deceit and dishonestly as the basis of the act of the

18 Cap 89 Laws of Northern Nigeria 1963

accused person that constitutes the offence. Then, it is correct to hold, once the act of the accused person is in good faith not having knowledge of any encumbrance to his original title or right on the subject matter, the offence of bona fide claim of right is open to him to exculpate his liability.

It is very clear from section 23 of the criminal code that, honesty and without intent to defraud are the elements that constitute the proof of bona fide claim of right. It is logical therefore, to infer the defence under the penal code once these two elements can be proved under section 174 of the panel code.

Another offence under the panel code under which an accused can claim the defence of bona fide claim of right is ‘receiving stolen property.’

Section 317 of the panel code19 provides

“Whoever dishonestly receives or retains any stolen property knowing or having reason to belief the same to be stolen property, shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.

To constitute an offence under section 317 above, dishonest possession of the stolen property must also couple with knowledge or at least reasonable belief that the property was stolen. However, if the accused cannot account for the possession of recently stolen property it is reasonable for a court to presume guilty knowledge.20

It is also to be noted that once the accused can account his possession of the property, then, he avails himself from liability.

Bona fide claim of right is one of the ways through which, if proved, the accused can escape liability, he must prove that his receipt or retention of the property was not dishonestly made. That is to say, he lacks knowledge of the state of the property and there was no reason for him to know.

Example, where A Is accused of receiving stolen car, he can claim the defence of bona fide claim of right if he can prove that the car belongs to him or that the car was mortgaged to him by B not known to him B steals the car from C and there was no reason for A to know that B stolen the car from C.19 Ibid20 Richardson, S. S. , Notes on the Penal code Law (1967) Pg 208.

6.0 UNDER CUSTOMARY LAW

Section 2 of the evidence act21 defines the word custom as a “rule which, in particular district, has, long usage obtained the force of law” this section suggests that not every custom can have the force of law. It is only those customs that were in use for a long period of time and accepted as part of the community’s guiding principles of laws.

In owoniyi, V Omotosho22 the court observed that customary law “is mirror of accepted usage”. In so doing however, it excludes spontaneous emergence of customary law. Usage means habitual practice, that is conscious act of a man done over several times.

Prior to the advent of the colonial masters in Nigeria, customary law was in practice among the members of the communities. But it was very hard to distinguish criminal law from the civil wrongs and that moral wrongs were considered as offences.

Under the customary law, the criminal law is not written and its procedure was not on any paper commencing from arrest of the offender, his trial up to sentencing. T.O. Elias23 said

“Whenever an accused is arrested, an involuntary confession could be made by means of trial by ordeal or torture, use of magic or juju. In addition to the high court of the Oba-in-council, there were powerful secrete cult tribunals that could try any person including the traditional ruler that could sent him to voluntary or customary exile or ask him to open the calabash, meaning that to commit suicide.”

Having above at the back of mind, one can belief that the offender is rarely given the opportunity to defend himself under the customary law procedure it is therefore very difficult for the accused to have right to claim bona fide claim of right as defence of his charge.

21 Cap 112, Laws of the federation of Nigeria, 2004 .22 (1961) 1 All N. L. R. 403 at 409.23 Elias, T. O., The Nature of African Customary Law, Manchester University Press, (1972) Pg. 58

On the other hand, the nature of indictment will depend on the nature of the offence. If the offence on which the accused is charged is a minor, he may be given opportunity to defend himself under this circumstance, the offender can raise the defence of bona fide claim of right. And whether the defence can avail him from liability or not will depend on the practice or usage of the community.

7.0 UNDER ISLAMIC LAW

Islam is a religion and a way of life, based on the commandment of Allah contained in the Holy Quran and the sunnah of the prophet of Islam, Muhammad (SAW). Every Muslim is under an obligation to fashion his entire life in accordance with the dictates of Quran and the sunnah of the prophet Muhammad (SAW),24 following there dictates is following the Shariah (Islamic Law).

“Shariah” is an Arabic word which means ‘path to be followed’ this is the path believed by all Muslims to be the path shown by Allah (S.W.T.), the creator through his prophet Muhammad (S.A.W.). It is believed by all Muslims that Allah alone that is sovereign and is he who has the right to ordain a path for the guidance of mankind. Allah (SWT) said in the Holy Quran.25

“We made for you a law, so follow it, and not the farcies of those who have no knowledge”26

It is on the basis of these that Muslims are obliged to follow the path and not of any other path.

But, in spite of the continuous guidance given by the creator through his messenger prophet peace be upon him (PBUH), and no matter how purified a society becomes, crime will still be committed though with different degrees.

Islam is a divine religion, therefore the language used for the massage is Arabic. The Arabic word for crime is “Jarima” which literally means, to earn

24 Doi, A. I. Shariah the Islamic Law, Tahah Publishers, London (1984) p.i.25 Qur’an, Chapter 2:1-226 Ibid, Chapter 2:145

what is not good, and technically it means, prohibitions imposed by Allah, the violation of which give rise to punishment known in Arabic as ‘Uqubat’27

Offenders of the specified offences that amount to crime are strictly punished. But on the basis of the prophetic hadith, an offender of a criminal act may be exempted from punishment if it can be proved that there was no intention to commit the crime or that the offender is mentally deformed or that, the commission of the offence was involuntary.

The Holy prophet says:

Three categories of people are exempted from punishment and religious accountability. An infant until he reach the age of majority, an insane until regains sanity and a person who is asleep until he wakes up.28

One of the important feature of the Islamic criminal law is that the guilt of the accused person must be proved beyond reasonable doubt. Islamic law is very strict, like the statutes and the common law, in terms of proof, the accused always takes the benefit of doubt in Islamic criminal trials. The holy prophet is reported to have said:

“it is better for the imam to make a mistake in giving pardon than to make it in giving punishment (BUKHARI)” 29

In another Hadith:

“Avert prescribed punishment where there is doubt”30

Another important feature of Islamic criminal law is intention.

Intention plays a vital role in the commission or omission of an act which constitutes crime.

Generally, a person is presumed to know the consequences of his act and therefore, liable of the consequences. But under Islamic law, a person can be liable of the crime he commits if he intends the consequences of his act.27Bambale, Y. Y. Crimes and Punishment under Islamic Law, Second Ed. Malthous Press Ltd, (2003) Pg. 128 Khan M.M., Sahih al-Bukhari, Arabic-English Vol. III, Dar al-Arabia, Beirut Pg. 528, in Bambale Ibid.2929Kareem, A.M.F. Mishkatul Masabih, vol II, Law Publishing Co, Lahore, Pakistan Pg 532. In bambale Op. Cit. At Pg. 930 Naseef, A.O., Encyclopaedia of seerah Vol. II The American School Trust, London, (1982) Pg 776

The Holy Quran provides:

“ The man can have nothing but what he strives for”31

This provision is endorsed by the prophetic Hadith transmitted by Bukhari and Muslim:

“actions are to be judge by the intention behind them and everybody shall have what he intends”32

Going by the above features of Islamic criminal liability, a defence of bona fide claim of right can be inferred since it is clear that an accused cannot be punished on doubtful case and that the judge must look into the intention of the offender before arriving at judgement. Therefore, once the accused can establish how he come about the property subject matter of the offence he can avail himself from liability.

It is on the basis of the above, Zamfara State government, in its Sharia penal code, enacted after adoption of Sharia legal system in the state, provided under section 66 of the code33 as follows:

“Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.”

It is obvious therefore, once the accused believes his right is legally protected and acted in good faith without ‘fraudulent intent,’ he can avail himself from liability by raising the defence of bona fide claim of right.

8.0 JUDICAIL INTERPRETATION

The defence of bona fide claim of right had received a remarkable attention from the courts as there are numerous judicial interpretations on the issues.

31 Ch. 53:39 op. Cit.32 Bambale, Y.Y. Op. Cit33 Shariah Penal Code, Laws of Zamfara State, 2000

The following cases dealt with the issue extensively:

JERMAN V. CARLISLE & 4 ORS.34

This is an unreported case from the Appeal Court of the United States. The question presented before the court was, whether a debt collector’s legal error qualifies for the bona fide error defence under the fair debt collections practices Act (FDCPA), of the US, S. 1692.

The issue before there Lordships is whether a mistake of law made by a debt collectors allows it to avoid liability by asserting a bona fide error defence under the fair debt collection practice Act.

In 2006 respondents (Carlisle & 4 others) served petition (Jarman) with a notice of collection, which include a provision requiring the debtor to dispute the dept in writing. Carlisle based the provision on their understanding of ‘current sixth circuit case law’ interpreting the FDCPA. The district court concluded that the FDCPA which governs debt collection practices, does not require the plainrift to dispute the debt in writing and subsequently the notice violated the Act. However, the court granted Carlisle immunity under the FDCPA “Bona fide error defence” which protects debt collection from penalties for unintentional violation of FDCPA.

A Nigerian cases in which judicial interpretation is given in respect of bona fide claim of right as a defence to criminal liability is the case of SONNY TANGO AND ANOR V C.O.P.35

The appellants in this case were charge for the offence punishable under section 451 of the criminal code law cap 48 vol.2, laws of Bendel state of Nigeria, 1976 since they wilfully and unlawfully damaged a block wall fence valued at N2,000.00. Properly of Madam Elisien Wem Odiase.

The question before the supreme court was ‘whether the appellant’ can rely on the defence of bona fide claim of right (section 23 of the criminal code) at the close of the prosecution’s case to make a ‘no case to answer submission.’

His lordship Walter Samuel Nkanu, JSC held that, from the provision of section 23 of the criminal code, it is clear that, for an accused person to rely or to avoid 34 United States Appeal Code, 201035 Culled www.wikkipedia/law/clim-of-right

himself of that defence he has to produce evidence in the trial to establish the fact that the claim of right is:

a Made with all honesty and

b Without intention to defraud

He added that, it is for the trial court to then decide whether the said defence avail the appellants particularly since a Prima Facie case has been made out against the appellants.

Therefore, it is to be notice that the defence of Bona fide claim of right can only succeed if the accused has proved his defence.

The decision of court in the case of Rose V. Matt36 did not deviate from the provision of section 23 of the criminal code in holding that, for the defence to exculpate the accused person from liability there must be no intention of depriving another of his special interest in the property.

In this case, a purchaser of goods deposited with the vendor, as security for the purchase price, a travelling clock, belonging to the purchaser who was to recover the clock on paying for the goods. The purchaser took the goods away but subsequently came back to the shop and removed the deposited clock in the absence of the vendor. He did this in order to prevent the vendor from selling the clock if the purchaser did not pay the price of the goods within one month. The purchaser was found guilty of stealing the clock because by removing it away during the pledge or security he intended to deprive the vendor of his special interest in the clock.

One issue that require rethink from the part of the judges is, the nature of the case the accused person is charged of, because the judicial interpretation on this issue is needing a second look. The judges looks into the honest belief of the accused person regardless of whether the act is wrong or right.

In the case of R.V. Skinvinton,37 the appellant said he received a letter from his wife authorising him to collect some wages from her employer who also was appellant’s employer. Appellant on the point of a Knife demanded the payment of his wife’s wages from the manager and later from the assistant 36 (1951) 1 All E.R. 36137 (1967) 51 Cr. Appl. Report. 137

manager of Messrs Drawry and Edwards, the employers. The manger fled but the assistant manager, Mr. Thurgood, on pain of the accused pointed knife, took out two wage pockets from an open safe and handed them over to the accused. This was on a Wednesday and wages were not due until Friday. Yet it was held that the appellant had an honest belief that he had a right to the wages and that accordingly the defence of claim of right was open to him in connection with the charge of robbery with aggravation his conviction of the charge was quashed.

De Lestang, C.J., In Oyedele V Awomodu,38 held the view that defence of being an owner of property could not avail an accused person charged with the offence of wilfully and unlawfully destroying or damaging property under section 451 of criminal code.

This decision of his lordship seems incorrect having regard to the provision of section 23 of the criminal code for a defence of bona fide claim of right in regard to any offence relating to property.

38 (1990) L. L. R. 118