Introduction to Criminal Law 2022

LPU 301: Criminal Law I*

2021/2022 Session

Defences
Generally, defences are the Defendant’s answer, denial or plea to the Complainant’s
case. In a criminal trial, the Prosecution is required to prove its case against the
Defendant beyond all reasonable doubts. The Defendant is deemed innocent until the
contrary is proved by the Prosecution. For the Prosecution to prove its case, it must
establish all the elements of the crime as provided by the Statute. For true crimes,
both the physical and mental elements must be established beyond reasonable doubts.
In the event that the Prosecution is unable or fails to prove/establish the elements of a
particular offence, the Defendant is not required to put up any defence. All that he is
required to do in such circumstance is to raise a NO CASE SUBMISSION.’ A No
Case Submission implies that from the totality of the evidence adduced by the
Prosecution, the essential elements to establish a prima facie case has not been
established. Alternatively, it could also mean that the veracity of the evidence
adduced by the Prosecution thus far, has been so discredited by the Defendant under
cross-examination. As such, no reasonable court would proceed to try the Defendant
for the offence charged by the Prosecution.

Where the Prosecution has established a prima facie case against the Defendant, at the
close of the Prosecution’s case, the rule of practice and procedure requires that the
Defendant must put up a defence. The Defendant may either do this personally or
through witness(es) to debunk the quality of evidence adduced by the Prosecution
against him. The legal implication of defences will affect the criminal responsibility
of the Defendant either to totally exonerate him or mitigate his criminal liability.
Defences may either be specific or general.

The Defence of Accident

Recall that in our previous lessons, it has been established that a person is not
criminally responsible for his conduct unless he possesses the proscribed state of
mind. This principle is expressed in the Latin maxim; ‘Actus non facit reum, nisi
mens sit rea’ which literally means an act/conduct alone does not make guilty unless
the mind is legally blameworthy. S 24 of the Criminal Code (CC) clearly upholds the
principle that all true crimes involve both physical and mental elements. Where an
accused person commits a prohibited act/omission without the requisite intent, he
may not be criminally liable, provided that he has not been negligent or reckless. The
defence of accident is provided for by s 24 of the Criminal Code (CC). It is referred to
as blameless inadvertence in the English criminal law. The defence is rooted in the
ancient common law principle which wholly exonerates an accused person from an
act which occurred without intention or any blameworthy state of mind. The defence

*
This summary is specifically designed as a reading guide to LPU 301 students and it is by no means
exhaustive on the topic.

LPU 301 Faculty of Law, University of 1

Ibadan
Introduction to Criminal Law 2022

of accident rules out intention on the part of the Defendant. In effect, it is a defence
which the Accused/Defendant puts up saying; ‘I lack the requisite mental capacity or
guilty mind.’ By raising the defence of accident, the Defendant admits the facts which
constitute the offence he has been charged with, but he is resting on the plea of the
absence of the requisite mental element.
Statutory Provisions

S 24 of the CC, the equivalent of which is found in s 48 of the Penal Code provides
for the defence of accident. S. 24 of the CC states thus:

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.

Take note that the defence of accident is specifically provided for in the latter
provision of the section.

Judicial Definitions

In Oludamilola v State (2010) 8 NWLR 421 CA, accident is defined as ‘an

unintended and unforeseen injurious occurrence that does not occur in the usual
course of events or that could be reasonably anticipated. It is an unforeseen and
injurious occurrence not attributable to mistake, negligence or misconduct.’ See also
the definition in Maiyaki v State (2008) 3 NWLR pt. 12075 429 CA, Agbo v. State
[2004]7 NWLR (pt 837) 546, 560 and Agwu v State (1998) 4 NWLR 544 93.

Flowing from statutory and judicial authorities, an accident is an event which is

unintended nor unforeseen. It is an event which is totally unexpected by the doer and
not reasonably expected by any reasonable person. It is an event which happens by
chance and is a surprise to the man of ordinary prudence. The event could be the
result of a voluntary or unwilled act.
Requirements
There are two main requirements which must be established in order to successfully
raise the defence of accident.

1. There must be an event. An event is the result or consequence of an act or

omission. Iromantu v State (1961) 1 ANLR 31 Nwokearu v. State (2010) 15
NWLR Pt 1215
2. The event was unintended and unforeseen.

It is presumed that a man intends the natural and probable consequences of his
action. The test for determining unforeseen events is the reasonable man’s test.
The law has evolved from the decision in R v Martyr 1962 Qd. R 398 and
Vallence v R 1961 35 ALJR 182 to the position in Mazilela TimbuKolian v R
1968 42 ALJR 295. In R v Martyr, the Court laid down the principle that an event

LPU 301 Faculty of Law, University of 2

Ibadan
Introduction to Criminal Law 2022

will only be described as an accident when it is too remote and indirect

consequence of the Defendant’s act/omission. However, the Court differed in
Vallence v R, where it held that an accident is an event which a reasonable person
in the shoes of the accused could not have foreseen as a likely and probable
consequence.

However, a more subjective approach is the one laid down in Mazilela

TimbuKolian’s case where the court held that accident is an event which the
defendant himself could not have reasonably foreseen to be likely or probable.
The subjective view has been adopted by the Court in the many Nigerian cases.
Iromantu v State (1961) 1 ANLR 31 State v. Appoh 1970 2 All NLR 218
Lawrence Asuquo v State (1994) 4 NWLR Pt 337 129 Asia Uwagboe v. State
(2008) 12 NWLR 620 See also previously referred cases.

In the CC, it is immaterial that the act which occasioned the event was a grave moral
wrong, repulsive and disgusting i.e. unlawful. However, in the Penal Code, the act/
omission of the Defendant which result in the event must have been lawful.
Exception
The defence of accident will not avail the Defendant where it is established that he
acted negligently or recklessly. Maiyaki v State. See s 24 of the CC
Effect of the Defence of Accident

Where the Defendant successfully raises the defence of accident, he is absolved of

criminal liability in toto. Nwokearu v State, Agwu v State. This is based on the
reasoning that holding a man criminally responsible for an offence which happened
by chance and totally independent of his intent is repugnant to the ordinary man’s
conception of justice and would bring the law to contempt.

The burden of proof of the defence of accident rests on the Defendant and it must be
established on the preponderance of evidence. However, the onus is on the
Prosecution to lead evidence beyond reasonable doubt to negate the defence as raised
by the Defendant. See Nwokearu v State.
For further readings, consult all recommended texts and applicable law reports.

LPU 301 Faculty of Law, University of 3

Ibadan