Posted in law

LEGAL SKETCHES ON CRIMINAL DEFAMATION

“The public is increasingly disgusted with a steady diet of defamation, and prepared to reward those who refrain from it.” – MITCH DANIELS

INTRODUCTION

The law of defamation is one thoroughly handled under civil law, particularly tort law. It is under tort law, defined as injury to the reputation of the person resulting from words written or spoken carrying false contents and published to the ears or eyes of a third person; the intent to mislead a third party is not of relevance but sufficient enough that upon the facts, a reasonable man was likely to be swayed by the defamatory statement prima facie thus a heightened likelihood of holding a negative view about the person defamed. This writer, however, is not unaware of the fact that the abusive words or insults uttered as prelude to a fight may be considered as words not to be taken seriously after considering the status of the parties, and the circumstances that led to the bitter words. To be mentioned pronto is the fact that words written are called libellous acts and it goes as far as covering media publications or print outs. The defamatory statements by word of mouth, is called slander. Since it has been a brief discourse on tort law, it is safe to add that damages is the relief sought generally for this tort – whilst it is actionable per se (without proof of injury) for libel, slander could prove difficult as the claimant in establishing the basic ingredients of the tort must be able to plead and capture the exact words or gestures complained of, and must be able to lead evidence establishing same. The claimant must be able to prove the injury, generally, if the thirst to rope in the defamer lingers in the taste bud. It is expedient at this juncture to stress that the claimant leads evidence in verbatim which proffer not the substance but the actual defamatory words so used as this goes a mile in assisting the bench determine whether indeed those words in their ordinary and natural meaning (or other ways applied), will pass for defamation: AKIN OLAIFA V GABRIEL ADEDEJI AINA; CHIEF S.O.N. OKAFOR V D.O. IKEANYI – the import of this being that the court will not lend its hands to a claimant who hurls “hearsay evidence” to the courtroom seeking redress neither will the court cherish the testimony of a witness who robustly testifies what he heard from a passer-by because the claim will not be based on third party testimony who was not present when the slanderous words were uttered. A notable case is EMMANUEL BEKEE & ORS V FRIDAY EBOM BEKEE.

The arrival that slander is not actionable per se will tip the moment we consider the exceptions to the general rule. In instances where there is imputation of crime on the claimant, or imputation of a venereal disease, or imputation of unchastity, or imputation affecting business reputation; then there will be little need to further prove the injury as these are actionable in itself with damages duly assumed: EGBE V ADEFARASIN; OLANIYI V ELERO. There are defences to this tort but since the focus is chiefly on criminal defamation, it may be convenient a time to dwell on it – the defences to defamation under criminal law are similar in subject matter with that under civil law just that punishment with the option of bail is readily the comeuppance in the former, while it is for the latter, damages. Also, a criminal suit is come about because of the supposed inclination of such defamatory words to arouse passion, provocation, and revenge thus affecting the public peace the law strives to maintain.

WHAT IS CRIMINAL DEFAMATION?

The term criminal defamation is defined in s.373 (1) of the criminal code. To regurgitate its wordings, “defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation.” Subsection 2 has that: “such matter may be expressed in spoken words or any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matter otherwise than by words and may be expressed either directly or by insinuation or irony.” What will be agreed upon having read the section, is that the law is not concerned with the degree of hurt the defamed bears rather it is concerned with the likelihood of such defamation to have reduced the defamed subjecting him to hatred, contempt, or ridicule. Put it aptly, where the alleged defamatory matter does not go to show exposure to hatred, contempt, or ridicule, then there is no culpability. A typical scenario is where Mr A makes false statements about Mr C to the hearing of a group of people that Mr C’s wife goes about in different cars a product of which was owed to her libidinousness, then the offence becomes complete if such unfriendly remark was one enough to reduce Mr C’s household to ridicule and hate. The part that has to do with innuendos and ironies was seen supra in the succinct x-ray of defamation under tort law. If the defamatory words are done in means other than directly, then it will remain a case of defamation after weighing the facts and finding the nebulous comments to be ironic and laced with impropriety all in a bid to say false things about the defamed – it is the view of this writer that in 9/10 cases, innuendos may be intended false statements as the defamer seems to ever pass his message in a way that he could claim naivety as to his intent or innocuousness as to his speech. On innuendos, the case of Arayi v. Ojubu is key. In this case, A made an oral statement to a village audience to the effect that the Olu of Warri had ordered each person to pay five pounds flat rate tax and seven pounds each for the Western Region free compulsory primary education scheme. The magistrate found that the Olu of Warri had said nothing of the kind and that the words were defamatory. On appeal however the High Court held that the words spoken were, without an innuendo, not defamatory of the Olu for they could not reasonably be said to expose him to hatred, ridicule, or contempt. – this case, clearly not direct on point, also flows to the shore of the legal position that merely to publish of another that he owes money is not defamatory though if an inability to repay is implied it becomes defamatory (the position in R V. COGHLAN). 

A close look at s.373 (1) cc evinces that where the defamatory matter is likely to damage the defamer in his occupation or trade then there is an offence. This ordinarily means that he has a reputation to so protect that such imputation on his business reputation will affect his earnings and many other wrongs. It is to be agreed with Akintunde Esan that reputation of such a person defamed should not be doggedly taken or implied to mean a white life without a string of imperfections but this writer stresses here that such a reputation which suffered such imputation may not know justice if indeed his nature of job includes illegal trades and transactions. It is apposite to consider the last two subsections under this section.

SECTION 373(3) & (4) OF THE CRIMINAL CODE

Under criminal law, where the defamer is seen to have defamed a dead man, there may be no crime. This should be taken with due caution and open-mindedness as the writer is not unaware of the fact that s.373 (3) cc posits in blank prints: it is immaterial whether at the time of the publication of the defamatory matter, the person concerning whom such matter is living or dead. What must be gleaned from all, under this subhead, is that merely to defame a dead man, may be no crime and the logic being that if it were to be a crime, the conduct of the deceased will never be brought into question and it would ever prove a difficulty to write history. What this sub-section seems to cure remains the object of the ridiculing little wonder the use of it is immaterial; but for the dead it is usually a question of who becomes the object subjected to a likelihood of hatred, contempt, and ridicule. It is submitted therefore that where a publication concerning a dead man goes to affect his relatives in such a way as to bring them to contempt and ridiculing, there is an offence. It is an offence where the defamatory words are targeted at the siblings or household of any deceased individual with a view to bring them to hatred. 

With a close look at s.373 (1), (2), and even (3) cc; it appears that there is no need to prove before the judges, the intention of the accused to bring upon the defamed any shrinking reputation or otherwise – thus a similarity between that dwelt under civil law which dwells on the facts and circumstances of the alleged defamatory remark. But it is wise to give s.373 (3) cc a deeper look. It is not enough for the relatives of a dead person to cry about the hurtful words or the innuendos used by the accused and expect the judge to sentence the accused; rather, the relatives are to prove the intent of the defamer to injure them: R V. ENSOR. From the ratiocination of Prof. Okonkwo, it will appear that the proof of such intention becomes key to make the court see beyond the facts that the words were to the dead and no more, but are defamatory statements with a view to bringing the relatives to contempt, hatred, and ridicule. Reading the case of R V. LABOR, it should be understood that it must be proved by the prosecution that there was a living member of the family of the deceased whose reputation may have been injured by the publication.
The law is clear on the matter. Criminal defamation as we have been made to understand recognises the axiom that dead men have no rights nor suffer any wrongs; it also recognises the fact that in cases of this nature vide s.373 (3), the law is interested in the proclivities of defamatory statements made about a dead man capable of bringing to smudge the reputation of family members – it is the living alone that are subject to legal protection. Of needed addition is the terse legal confirmation that it is very material for the consent of the Attorney-General of the Federation to have been sought before prosecution of defamatory matters concerning a dead person is given flesh and blood in a court of law. This is the whole gist in s.373 (4) cc. 

PUBLICATION OF DEFAMATORY STATEMENTS

There is no mention of the word, “libel” or “slander” in the criminal code but a cursory look at relevant sections of the Code vide the definition section treated supra and even s.374(1) (a) & (b) cc, will show that the description attached in these provisions have same bearing with the branches of defamation treated under tort law supra. It has already been said what constitutes defamation in s.373 (2) cc – it goes to cover that of spoken words or audible sounds, and that of written remarks or anything otherwise than by words. From the definition section, the criminal code recognises slander and libel as branches of defamation from its wordings; and like defamation under tort law, criminal defamation must be published. Looking at s.374 (1) (a), for the purposes of this Code the publication of defamatory matter is in the case of spoken words or audible sounds, the speaking of such words or the making of such sounds in the hearing of the person defamed or any other person. Agreed, the publication will be complete upon the utterances of the defamatory words to either the hearing of the defamed or to some person other than the defamed. Where the audible sounds are recorded and are defamatory, it shall be deemed to be published if reproduced in any place to the hearing of the persons other than the person causing it to be reproduced. This is the law under s.374 (2) cc; the examples of such matter include tape, disc, and the remaining means mentioned in subsection 3 of this section. 

The proviso that centres on libellous acts is s.374 (1) (b) cc. It has that in other cases, the exhibiting it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with intent that it may be read or seen by the person defamed or by any other person. It is transparent from this subsection that the defamatory statements will be deemed published from a mere exhibition of its content in the public with intent that it be read or seen. Both subsections end with the inclusion that the defamation is deemed published if heard by the person defamed or a third party. It is the part that allows for completion of the offence if heard by the defamed person alone, that shows the disparity between tort and the law of crime on this subject matter – it should not be forgotten that under tort, the publication must take place but completed upon communication to a person other than the plaintiff; for criminal defamation, an offence is deemed sufficient if uttered to the defamed and no more. It is the view of this writer, however, that s.374 (1) & (2) cc may suffer infeasibility for the singular fact that in cases of spoken words of defamatory matter, it may become impossible to prove the crime as there was no witness to make the prosecution’s case positive. How can words told to the hearing of the defamed only, amount to defamation? If the intention of the draftsmen in s.373 in its natural meaning is about determining whether the defamatory words were of high likelihood to bring hatred, contempt, or ridiculing to the defamed, then how is it feasible for the defamed to prove that beyond the emotional weeps he suffered after hearing the slurs, the words he heard alone were bound or most probably exposing him to contempt or hatred? It needs be reiterated here that the court is more interested in protecting the reputation of the defamed on this matter – one should be deemed defamed when exposed to hatred; or the tendency of its publication to attract some regrettable injury, stays high.

DEFENCES TO CRIMINAL DEFAMATION

The defences under here have large similarity with that under tort law. Just as truth of a statement is a justification under defamation in tort law, s.377 cc embraces such as a reliable defence.  There is yet another defence known as absolute privileges vide s.378 of the Code. Under this section, the president or governor is considered privileged upon publication of the defamatory matter. It should be understood that immunity covers these public officers vide s.308 of the extant constitution of Nigeria. The question as to whether the president can be sued for criminal defamation is one that must be answered positively where it is evinced that he stands as a nominal person – nominal party meaning one who does not have a personal interest but his interest in any particular case is by virtue of his office. The idea to be taken therefore is that there lies no criminal responsibility on the president hence it will be futile a course to aim for the big bone (a conviction): HASSAN V. ATANYI.

Say we settle here for a while, it is the law that no civil or criminal proceedings shall be instituted or continued against the public officers mentioned in subsection 3 of s.308 during his period in office: RAFIU LAWAL V. THE STATE (1981). A full read of s.308 CFRN will show that while the constitution puts shackles on the legal foot of a party to continue a suit that was pending before such a public officer came to know immunity, it seems rather silent as to whether the public officer that is now immune should as well be debarred from bringing suits to court in his personal capacity. But whether it becomes safe to hold that the public officers are debarred may suffer far-reaching intention of the draftsmen as it so soothes logic and no-brainer puzzles to hold affirmatively that the nearest in meaning of s.308 (2) CFRN, which estops parties other than the public officers from suing public officers in unofficial matters, is for the public officers to so institute actions civil in nature as it is common knowledge that criminal matters are state affairs. This is as good as it gets because relying on the lead judgement given by Onnoghen JSC in the case of Global Excellence Communications Ltd v. Mr Donald Duke, and joining my legal credo with Ayoola JSC in the celebrated case of Tinubu v. IMB Securities PLC. In these cases, the twelve tablets of interpretation were used in shedding light to a rather bright area (s.308) – the twelve tablets were given by Obaseki JSC in the case of AG BENDEL V. AG FEDERATION. In the Donald Duke’s case, judgement was entered for him after the due appropriation of opposing learned counsel’s argument which was flowery and laced with undiluted items of morality and no more. If indeed the draftsmen intended to debar the public officers, it should have done so during its construction. The mere fact that one might choose to call it narrow does not in any way change the law and the expectation that the court make fanciful abracadabra on matters within the jurisdiction of the legislature will amount to usurpation of power and clear neglect for the constitution it so seeks to protect by due interpretation – as Obaseki JSC put it in Ojokolobo V Alamu, “…if the language is clear and explicit, the court must give effect to it, for in that case, the words of the statute speak the intention of the legislature. Its function is jus dicere not jus dare. The words of a statute must not be overruled by a statute.” Of disturbing concern was the submission of Justice Abubakar Talba in a case situate at Abuja that late President Yar’Adua was debarred from instituting a legal action on a defamatory matter published by Leadership Newspaper surrounding his health status. It seems smooth sail if we consider Global Excellence Communications Ltd v. Mr Donald Duke (supra). Here a preliminary objection was made by the defendants that the governor is debarred from suing while in office in his personal capacity. While the governor succeeded at the trial court, the appeal was allowed in the Court of Appeal only to be reduced to dust at the supreme court level that the governor had such right to so sue; it was added by the court that it was not for the court to read in between the clear lines of s.308 and choose to smuggle laws that be not intended by the draftsmen. That we suffer our minds to matter purely concentrated on criminal defamation, it is apposite we segue into a conditional privilege.

A good read on s.378 cc will show that it is absolutely privileged to give testimony in a court of law though it is misleading on the surface. Defamation claim must fail here as the court expects that witnesses be free to express themselves without fear of imminent law suits over one false statement too many. In Liley v. Roney, a complaint to the law society or its equivalent had been held to be absolute privilege (this is found in s.378 (2)). There may be little need to dwell on the defence of conditional privilege but it must be stated as a matter of guide for law finders that the apropos section touching on this defence remains in s.379 cc.

Where the defamatory matter is published in a periodical, like tort law the alleged defamer is expected to rebut the presumption of knowledge by leading evidence to show lack of knowledge of such publication as well as lack of negligence if indeed the criminal responsibility be absolved. This is the undiluted message in s.380 (2) cc. There are other defences under the code like that of protection of innocent sellers of books and newspapers (381 cc), fair comments, to mention to this point.

PENAL SECTION FOR CRIMINAL DEFAMATION

Subject to what has been said in s.380, s.381 of the Code, and letters under fair comments et al, it should be taken broadly that any person who publishes any defamatory matter is guilty of a misdemeanour and is liable to imprisonment for a year, and any person who publishes such defamatory matter knowing it to be false is liable to imprisonment for two years. S.375 cc is the relevant section that establishes what has just been said. There is no complexity in this proviso. It is the law that where the prosecution is unable to prove intent, then the accused will not escape the lesser conviction i.e. the one year jail term: S.179 (1), CPA.

Where it becomes a felonious act is when the defamer publishes or threatens to publish the defamatory matter, or promises not to proceed in its publication, or offers mischievously to prevent its publication with the intent to extort money or any other material from the victim; or to procure, attempt to procure for any person and from any person anything of whatever kind which clearly suggests an undue advantage, is punishable under the criminal code vide s.376 with imprisonment for seven years.
CONCLUSION

In leading evidence in an indictment for publication of defamatory libel, where the accused pleads not guilty he may show that such a publication was not defamatory in content, or that it was not published by him, or it was a fair comment and no more, or that it was absolutely privileged. Examining s.6 of the Libel Act, 1843, the accused cannot on such a plea seek to prove the truth of the matter unless, of course, he is charged with publishing the matter knowing it to be false. Justification, if and when pleaded, must be in line with s.6 Libel Act (supra). There is more to this subject-matter, but the above should be able to keep one abreast with the basics and little conflicts known or yet known in the legal community.

©Authored by OKOCHA Obed.

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Posted in law

LAW AND MORALITY (2); A CONNUBIAL RELATIONSHIP

INTRODUCTION

The first part of this work dwelt on the debate as to the supremacy of law over morality and vice versa. It is really hoped that some positivists will not be out of sorts if this writer stresses that morality was formed in flesh and blood before law was conceived. It may interest curious minds to know that even the diehard positivist, Prof. Hart, concurred to the saying that morality was extant before law. Not to have anyone left shagged, it is apt we consider marrying and divorcing the concept of law and morality.

NEXUS

Aniekwu, a professor of law and research expert, in her text legal methodology and research in Nigeria helped a great deal in evincing the relationship between law and morality in a diagram. The diagram had two circles, and a shaded area which was not large – it touched both circles – represented the common ground where law enforces morality. With ease should it slip down throats that there is lack of merit to holders of the view that it is sufficient to rule the world with morality sorely. The marriage of the concepts will be celebrated in the subsequent paragraphs with statutory clothing and case laws. Since divorcing the concept will leave us in no bind, it will not be safe to say that from standard dictionaries (BBC ENGLISH, MERRIEM WEBSTER), law and morality were considered synonyms. Morality is relative in nature and was dwelt upon by Lon Fuller and other naturalists; this school believes law is from a spiritual being and it was relayed to man. It even believes that morality is one which is innate in man and one not remote from reason. Since morality is concerned with militating against unfairness, it is said to familiarize with law (or the other way round). The difference is pellucid in that where morality knows no sanctions and cannot fall back on an institutionalised body; law has such features at its beck and call. A disparity yet to be exposed, though mentioned, is that of the milieu of morality and its peculiar nature of relativism. What is applicable in Nigeria, for instance, is not necessarily the same in America e.g. a boy of 15 years being in a relationship with his age mate in Nigeria could attract serious belting especially when the relationship excludes nothing – suffice it to say that they whip the kid to say it is ineluctable to walk like men at such milk days. But in America, we realize from movies and experiences away from the movies that it is a normalcy for such teenage bonding to so exist without the parent calling such a gauche.

Even as the connubial relationship between the concepts are up for discussion, of interest also is the take from religious standpoint. A perusal at the Holy Scriptures has in Leviticus 19:9-10 what God wants us to do the moment we reap our harvest. God was saying there that the vineyard should not be gleaned but leftovers should be left for the poor; what is more, other than the fact that God displayed compassion and fairness. A consideration of this scenario will make moreish the nexus between the two concepts: Mr A. harvested yam on his land at a certain day, the land became pregnant with a profusion of yams several weeks after. Mr A happily came to reap the harvest of his land and gathered nearly all. He left some behind because he had his hands full already. He told himself that he would go back for the rest. Mr B, a poor man, came to the land and saw the yams placed on the ground. He believed it to be that Mr A was a kind man who took cognisance of the bible text above. He took the yams to his home to prepare for himself lunch. This case finds a footing in a court of law but the judge was convinced by the prosecution’s rhetoric that wafted in the four corners of the court room. The reliance on Leviticus was deemed unreasonable; no escape of culpability, and no need to utilize moral codes in the judgement. It cannot also be said that law does not have in its content something of moral birth as chapter 21 of the criminal code deals with offences against morality (s.214 cc) on unnatural offences. It means therefore that the law seeking justice could in some cases enforce morality.

As Abiola Sanni, editor of Introduction to Nigerian legal method, observed, it is quite paramount one considers the processes whereby a particular moral value, rule, and standard is created, and eventually embodied within the law especially where there is a wide divergent view on the morality of a particular issue. Looking at abortion for instance, a group of persons may hold firmly that a woman should not commit abortion for it is a taboo in the eyes of God and man, and if the law recognises such practices then that will be encouraging the immoral act and thus draining the societal values. The other part of the same society, the pro-abortion group, will passionately advocate for liberalization of these women – after all, these women are owners of their body and so can decide whether they want to have a baby or not. It should come as no surprise where the law takes the latter view owing to logicality, or it can do well to strike a balance. This means that the moment any of the sides can mobilize a crowd to their side especially of those in the political class, and their ideas crystallize into enacted law, then that is what becomes the will of the people. While still observing the marriage of law and morality, an appreciation of Shaw v. DPP should leave a mark. Here, Shaw had published a booklet titled The Ladies Directory in 1962 in which he listed and advertised prostitutes, together with photographs and descriptions of their particular sexual predilections and practice. Shaw was charged with the offence of conspiracy to corrupt public morals. The last time anyone was convicted for the offence was in the eighteenth century. Shaw contended that the offence was out-dated and urged the court not to enforce it. He was convicted by the trial court and unsuccessfully appealed to the Court of Appeal before it got to the House of Lords. Upholding Shaw’s conviction, Viscount Simonds, who was goaded beyond endurance, held that the court had a residual power to enforce the supreme and fundamental purpose of the law to conserve not only the safety and order, but also the moral welfare of the state. In this case, the court frowned at the manner of its public advertisement and not even the prostituting itself. It was in the year 1967 that the sexual offences Act was passed and it provided, inter alia, that homosexual acts in private (performed by two consenting humans) were no longer a crime. What Shaw got nailed for was the gathering of promiscuous hussy females in a magazine to be read by the public eye; that is sufficient to corrupt minds. A case on homosexuality is Knuller v. DPP where the appellants published a magazine International Times in 1973 which had a message to the public to contact them for homosexual purposes. The House of Lords followed the reasoning in Shaw v. DPP holding that the sexual offences Act did not in any way grant the publishers the indulgence to publicly encourage homosexuality. It was only justice when the court convicted the publishers for the offence of conspiracy to corrupt public morals. What can be perceived from the aforementioned cases is the House of Lords doing well to interpret the sexual offences Act for the Act was obviously not generous from its literal construction to include public advertisements. It can be said therefore that law and morality cling to a single rope and not strangers despite conflicting school of thoughts.

More on the marriage between law and morality leads us to the celebrated case of Inakoju v. Adeleke. For appreciation, the third respondent was the elected Governor of Oyo state. The first and second respondents were respectively the Speaker and Deputy Speaker of the Oyo State House of Assembly. On 13th December, 2005, eighteen legislators, who were opposed to the third respondent, met at D’Rovans Hotel, Ring Road, Ibadan. They raised a notice of allegation of gross misconduct against the third respondent. They did this without the involvement of the first and second respondents who were the Speaker and Deputy Speaker respectively. The service of the notice on the third respondent was done by the group through a newspaper advertisement. Thereafter, they went ahead and requested the Acting Chief Judge of Oyo State to set up and inaugurate a seven-member panel to investigate the allegations of gross misconduct they had drawn up against the third respondent. The Acting Chief Judge empanelled and inaugurated the panel to investigate the alleged acts of gross misconduct against the third respondent. The panel sat for two days and without taking oral evidence from anybody. It eventually submitted its report to eighteen-member faction who in turn passed a resolution by which they impeached the third respondent. Prior to this, the third respondent had filed an action against the eighteen-member faction of the House of Assembly challenging his impending impeachment. It is now considered an error on the part of the trial court to have so held that by virtue of s.188 (10) CFRN, 1999, it had no jurisdiction to inquire into the removal of the third respondent. What has been applauded today is the decision reached by the Supreme Court in this case. The Supreme Court were not incorrect to consider absurd the submissions of the appellants who submitted that a community reading of sections 90-96 CFRN evinces that a House of Assembly does not mean a building, but the members constituting the House. If efforts be taken to read the full judgement, then it will be agreed that the Supreme Court did well to curb the excesses of the legislature. A big concern still remains; the ouster clause appears limpid vide s.188 (10) CFRN which has that no proceedings of determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court. Flowing from the proviso, it appears unambiguous in its construction – in essence, there was no call for mischief rule. The legal draftsmen were patently clearly, little wonder s.318 CFRN was devoid of further clarification on the matter. To cogitate on the rationale behind the judgement, brings morality to line light. The Supreme Court seemed to apply morality due to the unscrupulous acts of the legislature – to call this judicial supremacy could be the case for the constitution is confessed to be supreme over the arms of Government and so if it creates an ouster clause, it should be followed. Where certain sections are deemed unjust and amounting to legal injustice, then the cumbersome amendment procedure should suffice. The point is, the judgement is soothing – at least in the eye of the public – but we see morality calling shots in a land governed by statutes.

The above paragraph evinces the nexus between law and morality in the field of constitutional law. Seguing into areas of criminal law, s.26 cc has that a person is not criminally responsible for an act done or omission made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing power of self-control could not reasonably be expected to act otherwise. R v. Dudley & Stephens is a case which involves the killing of a cabin boy when it appeared that food was not forthcoming as well as rescue. The application of morality was seen when the court did not let the reliance of s.26 cc absolve them glaringly because it will be unfair to kill another person as far as moral conduct is concerned. The accused men however got pardoned but not to say that the court applied the ordinary man test as showcased in the criminal code. Another aspect under criminal law is s.23 cc which has that 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. It will in no way be witty to say that s.23 and s.25 cc is interwoven. A definite distinction between both sections is the fact that the former provides for an honest claim solely while the latter has honest and reasonableness under its roof. Nigerian cases under Bona fide claim of right, seems to be at dissidence. Take for example, Ejike v. IGP where the reliance on s.23 cc did well to absolve the accused from criminal responsibility simply because he destroyed 526 blocks on disputed land under the honest belief that he owned the land. Cases similar to Ejike’s are Iroaghan v, COP and Sule v. DPP where the court held the accused free from culpability under their honest claim to have destroyed cement pillars and the destruction of three uncompleted buildings respectively.  From the moral point, these decisions will be deemed unfair but that is why not all aims and objectives of morality are judiciously followed in the spheres of law. How about we ruminate on this: since morality is considered to appeal to reason (naturalists view), will there be a safe landing to link the doctrine of reasonability to morality? If we go with the affirmative, then it seems our Nigerian Courts have failed to comply with s.23 cc instead they have inscribed in their heart morality when giving its judgements. Even with the clarity of s.23 cc which removes the dwelling of reasonability, it was not the case in Nwachukwu v. COP where the defence failed because of the conduct of the accused that destroyed plants in disputed land. It is interesting that the court hinged its judgement on the unreasonableness of the accused’s action. What can be gleaned from the ratio is that the court deemed it unfair and faulty to reason. The correct position was underscored in the case of Diaberin v. State where the Supreme Court said: “It is enough if the belief is honestly held and there can be no justification for reading into (section 23) of the criminal code any implied requirement that it should also be a belief which it was reasonable for the accused to hold.” It becomes necessary therefore to join faith with Prof. Okonkwo who hopes that the courts will adhere to this admonition.

CONCLUSION

It will be fallacious to state that morality does not need the aid of law as without the law, there will be no sanctions or prison-scare. Frankly speaking, the role played by morality in legal matters is not so much an eyesore because if in the case of R v. Kingston, the court acquitted the paedophile on grounds that his intoxication was involuntary; then it was as good as the court releasing filth into the society it strives to protect. Legally speaking, it should not be taken home that law’s primary role is to enforce morality – as Lon Fuller enthused. The first part of this piece already stressed that the two concepts are not synonymous. Law is concerned with justice and accompanied by statutes and case laws. The celebrated case of Inakoju v. Adeleke (supra) displayed morality. Although the decision reached by the Supreme Court remains celebrated, the constitution was not generous enough to issue any form of unfettered position in the hands of the judiciary over all matters especially as ouster clauses in s.188 (10) is concerned – bearing in mind that the constitution is the grund norm. Lawyers are trained to apply law to facts (not to morality). If a matter is before the court and has peculiar attributes, where the statute books did not envisage, the discretionary exercise of the bench on the matter if amounting to fairness has morality to be born. In essence, law and morality makes a great team. But then, boundaries should be respected – except it is just ineluctable.

OKOCHA OBED

Posted in law

LAW AND MORALITY (1); THE DEBATE

INTRODUCTION

The concept of law and morality is viewed by quite a number of persons to have a nexus. Legal scholars as well as persons with an ounce of knowledge on this discourse will jump into a non-remote conclusion that the concept of interest is indeed over flogged.  To state the obvious, law and morality are distinct terms which should not be considered repetitious or synonymous. Law knows no universal definition – it is defined differently by prominent legal gurus – but the definition given by Salmond seems to sink in: “The law may be defined as the body of principles recognised and applied by the state in the administration of justice. In other words, the law consists of the rules recognised and acted upon by the courts of justice.” Morality on the other hand is the recognition of the distinction between good and evil or between right and wrong; respect for and obedience to the rules of right conduct; the mental disposition or characteristic of behaving in a manner intended to produce morally good results. According to Thomas Jefferson, still on morality, “Whenever you are to do a thing, though it can never be known but to yourself, ask yourself how you would act were all the world looking at you and act accordingly.” With the two concepts now defined, apropos it will be to swing our minds to a question asked by Ronald Dworkin which is whether and how the content of each system affect(s) the content of the other. Even Pinky and the Brain are yet to ponder on the two sides of the classical question i.e. in thinking about how the content of the law affects the content of morality, the classical question is: whether we have a moral obligation to follow the law? In thinking about how the content of morality affects the law, the traditional question is: how far is morality relevant to fixing law’s content on any particular issue? It is thus hoped we sit tight as this writer flogs the concept (supra) one more time.

THE DEBATE

Ronald Dworkin was a Jewish American philosopher, jurist, and scholar of United States’ constitutional law. He is deceased but his works remain hail and harty as far as the legal and political field is concerned. His theory of “law and integrity”, in which judges interpret the law in terms of consistent moral principles especially justice and fairness, is among the most influential contemporary theories about the nature of law. Dworkin advocated a ‘moral reading’ of the United States’ constitution and an interpretivist approach to law and morality. He was a frequent commentator on contemporary political and legal issues, particularly those concerning the Supreme Court of the United States, often in the pages of the New York Review of Books. He moves away from positivism’s separation of law and morality since constructive interpretation implicates moral judgement in every decision about what the law is. The obvious answer to the question whether Ronald Dworkin is morally inclined or perhaps a legal moralist is already attended to in this paragraph. But in a bid to have it expressly seen, the Stanford Encyclopaedia summarised Dworkin’s critic of HLA Hart’s legal positivism in the following words: “Dworkin, as positivism’s most significant critic, rejects the positivist theory on every conceivable level. Dworkin denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its moral merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory how cases ought to be decided and it begins, not with an account of the political organisation of a legal system, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.” Dworkin, in his one system conception of law and morality, characterised his own interpretivism as rejecting both the complete independence of law and morality (which he ascribes as positivism) and the veto position of morality over law. Even then, Dworkin says he was able to see, against positivism, that law includes not just enacted rules, or rules with legal pedigree, but justifying principles as well. These principles, he says, are the ones that provide the best justification in morality of…enacted rules.
It is clear that Ronald Dworkin says that it is wholly unacceptable to say that there can be a survival of law without morality and vice versa. However, it seems like his rejection of the veto position of morality over law is enough to be deemed merely hanging in the cloud. He is without doubts an advocate for the persistence of morality in the society and so if he questions the superiority of morality over law, then goes ahead in his one system concept of law and morality to stress that law is embedded in morality and it is only an aspect of morality, then can we not perceive this to be hazy? The legal philosopher brings to the dinner table a model of ‘whole and part’ and rejects the whole idea of distinction between law and morality but rather unifies them to be one; hence the whole digest of his manuscript, ‘The one system conception of law and morality’. To crack it a little, to say that law is embedded in morality and unified into one system raises curiosity. Embedded means to be part of or particularly buried in something. If law is part of or partially buried in morality, it then suffices to say that both concepts are still with distinct features – it is likened to a branch and trunk relationship which, according to Baxter, is distinguished based on purposes of identification. With this seeming hazy metaphoric model of whole and part, it is wished Dworkin were alive to make it less confusing. Ronald Dworkin indeed preaches one system and equates law and morality when he said that morality has no veto position over law. Difficulty will arise here because to understand exhaustively what was meant by morality having a zero veto position over law subjects us to the English dictionary which helps, though a little, to stress invocation of certain rights. If we are to say morality has no veto, then we are saying law does not have its position marginalised when looking at the balance of the two concepts as preached unreservedly by Ronald Dworkin. But is morality the whole, and law the part in his ideology? If we followed carefully, the answer is in the affirmative. A child can never be superior to his father and even morality in many parts of the world will not consider it apt to equate a child to his parents. That established, can it be said morality is not superior to law in relation to Ronald Dworkin’s ideology? It appears that morality supersedes law the moment Ronald Dworkin made it a single parent. His persistent legal and moral verbal wars fought against positivist school appear to emasculate the presumed reverenced gigantic throne law is placed. Point made here is that Dworkin – though not a scatterbrain – has an ideology which begs for clarity. But then, the legal philosopher is long part of the ground. Prof. HLA Hart had a different view to this issue however.

Prof. HLA Hart always showed consistency in his belief that law and morality are terms very much disparate. Hart subscribes to the positivist school and is a prominent figure indeed ranging from legal texts and debates such as the famous Hart-Fuller debate. While Hart argued that law and morality were separate, Fuller held for morality as the source of law’s binding power. As we may already know, positivists believe in a separation between the law as it is, and the law as it should be. Legal rights and moral rights are not related beyond mere coincidence – this being their philosophy. Hart, who decided not to grin and bear the theory of Lon Fuller and that of Dworkin, gave his own schema. Hart believes that the method of deciding cases through logic or deduction is not necessarily wrong, just as it is not necessarily right to decide cases according to social or moral aims. He used the problem of the core and the penumbra to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief. A core case is one that the statute intended to cover. To splash a classic example, a statute that bans vehicles from a park is obviously intended to cover cars. A penumbra case would be one not considered by the creators of the law, such as the appearance of a skate board in the example given under core. A judge interpreting such a law from a positivist viewpoint would look to a definition of the words in the statute. The natural law view believes that the creation of law should be based on natural laws or common morals.

If there is one thing limpid enough, it is the fact that HLA Hart sees law as a bedrock in which the society secures existence; little wonder he defines law as: “Those rules of conduct on which the existence of society is based and of which its violation tends to invalidate its existence.” His definition is no way scentless and it surely sits at the right hand side of his philosophy. The disparity between Dworkin’s model of whole and part, and that of Hart’s illustration of core and penumbra is that while Dworkin advocates one entity, Hart recognizes no connection between law and morality and with his point not being surreptitious, he pattered down that law is the crux or central idea (core) and morality is out of the scope of law (penumbra). For lovers of scholarly debate, this paper will segue into the sphere of revitalizing interested readers with the position of Patrick Devlin, Prof. Hart, and Dworkin succinctly.

The Hart-Devlin debate focused on the issue of legalising homosexuality and prostitution which was investigated by the Wolfenden Committee headed by Sir John Wolfenden. The report claimed that it was not the duty of the law to concern itself with immorality. It was argued that homosexuality should be decriminalised on the basis of: (a.) Freedom of choice, and (b.) Privacy of morality. For Devlin, law without morality destroys freedom of conscience and is the paved road to tyranny. He appealed to the idea of society’s moral fabric. As far as Devlin is concerned, the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling. His position became yet very dulcet when he reasoned that immorality is what every right-minded person considered immoral. For him, there could be no theoretical limit to the reach of law; no acts are any of the law’s business. Before looking at the tablets he prescribed, he suggested that the common morality could be discerned by asking “what is acceptable to the ordinary man, the man in the jury box, who might also be called the reasonable man or the right minded man?” In his guidelines, he hammered that privacy be respected; that law should only intervene when society cannot tolerate certain behaviour; and law should be a minimum and not maximum standard. His point is lucid, but not in entirety. Devlin’s reasoning is that the common morality of the society should not be bastardized and so law should intervene only when the society frowns upon a certain conduct. Maybe Devlin’s definition of society is needed and also, is societies’ views always correct? It thus seems very obscure. To attempt the intent of Devlin upon usage of the word society, there may be need to consider Margaret Thatcher’s explicit declaration that “There is no such thing as society, there are individual men and women and there are families.” A point made or attempted by Thatcher is the question of what constitutes a society if not individuals. Well, if there is anything to take away from her declaration, it would be that society as a word is non-existent but what is prevalent is merely an individual man with his spouse and child coming together to be a family and having their own values which could be distinct from family B – this will not satisfy what Devlin meant by society. A favourable answer is given by Oxford Advanced English Dictionary which views society as a long standing group of people ‘sharing’ cultural aspects such as language, dress, norms, or behaviour and artistic forms. The food yet chewed is whether societal views are always correct.

Hart on the other hand adjured against the dangers of ‘populism’. He believes that most peoples’ view are covered by superstition and prejudice thus making law gain ground in the place of morality in the society. What Dworkin suggests is that we abandon the Hart-Devlin debate and concentrate on liberties. To Dworkin, if a behaviour is a basic liberty (like sex), this should never be taken away, even if someone has a different way of actualising a sexual activity e.g. using a spanner in the vagina of one’s spouse all in the sake of sensation and satisfaction vide R V. Brown. He stressed that general liberty could be restricted if they cause harm. Now the feasible question is how can one tell the difference between a basic liberty and a general liberty? It is wished again that Ronald Dworkin could attempt a response.

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Posted in law

HOW CAN A COMPANY TAKE ADVANTAGE OF THE LAWS IN HER COUNTRY?- A MORNING DIGEST

The subtle reality on this score is that companies take advantage of the loops in the statutes as well as enjoying the juicy enabling provisions of other domesticated laws allowing for profits, buyer’s protection, business competition, to mention a few. The long and short that this paper seeks to unwrap is this crystal: there exist an answer on how companies can benefit from the laws of her country. A queue of paragraphs must now be given ear.

The issue of taking advantage of laws has left many unscrupulous private companies engage in businesses worth injuring the pockets of consumers. Many developed countries have antitrust laws aimed at controlling the excesses of these companies. Take for instance, the issue of bread supply in a university where a monopolistic market is the state of things. Here, the antitrust law regulates the price by putting amount of sale at a ceiling level or ground level. Because a ceiling price will be restricting competition unfavourable to the producers, the law allows for a minimum amount the commodity cannot go beyond but still watch for irregularities. Sadly, no antitrust bill has been passed into law in Nigeria though there are Acts of Parliament and sister Regulations that go to influence the business market. What must be advised is that since the legislature are still in the habit of failing to bring about the enactment of Antitrust Law, a company can set up a business after a careful reading of PRICE CONTROL ACT. A thorough look at this Act shows the sins the law must punish but it also shows the laughable amount of money the law calls fine for erring companies. Taking advantage is restraining from section 6 of the Act which is HOARDING OF GOODS but since the law allows for business competition, it is applaudable to know the prohibited goods, select a lawful enterprise, have control of the market demands, have eyes down to avoid irregularities, et al. It is not advised to start up a business that offends antitrust laws yet enacted in Nigeria for a singular fact that it will be total recklessness and imprudence on companies part who must have heard that the legislature is contemplating the enactment of antitrust laws but blindly goes ahead to let the company be structured on inconsistency with the pending Antitrust bill. The question thus arises, what happens when the company is fully set up and the bill is passed? It is wondered how such company will cope.

The Labour Act, the Export laws, et al are laws that govern the market especially the Labour Act. The country Nigeria is well garnished with fruitful yields little wonder the foreigners persistently fly in to do business and even buy big flats. The point remains, the law over the world allows for business competition. As a matter of diligence, imbibing the thoroughness of Aliko Dangote only gives business thinking succour. Most companies cannot operate at his level but most companies can find the less ventured area still considered lawful as a matter of law. One needs a solid capital not necessarily the entire cash in world bank to galvanize into fruition the reality of a good business. Working on a new brand is good, have it all over the 36 states is better, throwing it into the international scene is the best. Exportation is profit yielding, popularity intriguing, and so on. Coke for instance is without a moot point as far as the above digest so far evinces. There are indeed more feasible ways to take advantage of Nigerian laws as the 3rd schedule of the constitution supports business competition, the Price Control Act, Labour Act, Sale of Goods Act, a legion of policies and regulations, to mention a few. It must be said not in passing that if one must adopt the well profit-inclined hands of exporting goods, then one must do well to read the regulation stipulating the bar that companies cannot attain because of the trite word, illegality, that is all over the statute books. Also, if one must export, one must abide by the rules or steps to bringing to existence the ten to eleven stages of a formal set up of an exporting corpus.
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