CRIMINAL LAW 2.6 THE DEFENCE OF BONAFIDE CLAIM OF RIGHT
Generally, there can be no criminal liability without fault. However, the defence of bona fide claim of right can negative the fraudulent intention.
Section 23 of the Criminal Code provides that there shall be no liability in property offences for an act or omission of the accused in the exercise of an honest claim of right without the intention to defraud. Claim of right means when the accused believes that he is entitled to the property. E.g. Adamu is owing Chinwe N50,000 and Chinwe out of anger takes Adamu’s phone and tells him to pay. If Adamu sues Chinwe, she would admit that she intentionally took the phone but would insist that Adamu should pay her money first before she returns it. Therefore, she honestly believes she is entitled to the phone until adamu pays up.
- The offence must be a property offence.
- The claim must be honest and without the intention to defraud. R V Bernhard
- Such belief must exist at the time the offence was being committed- R V Pollard.
ANALYSIS OF THE DEFENCE OF BONA FIDE CLAIM OF RIGHT.
Is it Justificatory or Excusatory?
Justificatory defences are voluntary acts done to prevent an even greater harm. For example self-defence in killing. While;
Excusatory defences are involuntary acts of the accused… as Glanville Williams in; “theory of excuses” put it: they amount to “a denial of the prescribed state of mind”. Excusatory defences include; insanity, mistake, etc. An excuse destroys blame. As such, although the act is detestable, the offender is nevertheless vindicated. Facts, circumstances and policy considerations may however have an influence on the outcome of each case.
From the above, the defence of Bona fide claim of right is arguably an excusatory defence because the accused labours under a false (but honest) belief. But all these distinctions are merely academic.
The defence can be applied literarily or purposively.
The literal interpretation involves reading Section 23 as it appears irrespective of the style employed by the accused in enforcing this right. The purposive interpretation tries to weigh the claim against public order and morality as the courts have often demanded that the conduct of the accused must (in addition to being honest) be reasonable.
:: The defence has been applied literarily in the following cases;
In R V Hemmings, a creditor who severely beat up his debtor to obtain the debt was excused under bonafide claim of right. Iroaghan V IGP and the case of Ejike V IGP, the accused in both cases were excused for the destruction of properties of the victims in the claim of their right. In Dabierin V The State, the court held that there is no need to read reasonableness into the defence of bona fide claim of right because the only thing Section 23 requires is that the accused should have a honest belief that he is entitled to the thing in question.
:: The defence has been applied purposively in the following cases:
In State V Okolo, the court held that where the demand is accompanied by violence or threat of life, the defence of bona fide claim of right would not avail the defendant.
In Apamadari V The State, the court refused to uphold a claim of right for the appellant where he destroyed the property and threatened life in the claim of his right. In Nwachukwu V COP and in Ejike V The State, the court also held that the degree and reasonableness of the accused’s conduct is a key factor in determining whether the defence of bona fide claim of right would succeed. Where he acted unreasonably, the defence may not avail the accused.
The combined provisions of Sections 81, 289 and 294 of the Criminal Code provides certain limitations:
- The claimant (accused) should ensure that the exercise of this right does not cause harm to others.
- The conduct of the claimant should be lawful.
- Where the accused commits another offence (not relating to the property) he would be liable for the new offence. For example, if B owes A N200000 and A goes to B’s house to enforce his right over the debt and in the process, A beats B and rapes his wife, A would be liable for rape and assault notwithstanding that he was enforcing his right.
Section 81 of the Criminal Code also provides that it is an offence to enter a land in peaceable possession of another in a manner likely to cause a breach of peace or reasonable apprehension of such.
There has been various arguments on whether the Section 289, 294 and Section 81 should apply to the defence of bona fide claim of right because from its wordings, Section 23 does not manifest the intention to be subject to other Sections. Whatever the case may be, a claimant is advised to be reasonable in enforcing his right and avoid contravening other provisions of the law. In my opinion, a literal and exclusive interpretation would encourage barbarism, assault and brutality… a purposive interpretation is more desirable.
BONAFIDE CLAIM OF RIGHT AND ROBBERY: the defence of bona fide claim of right ought to ordinarily apply to robbery because robbery is a property offence. However, robbery leaves far reaching physical, traumatic, emotional injurious effects. As such, citizens should not be entitled to use robbery and its accompanying violence to enforce their bona fide claim of right. Holding otherwise would lead to a situation of anarchy and disorder. As such, the limitations discussed above should be applicable in robbery situations. The defendant should not cause harm to the victim.
In conclusion, it is suggested that Section 23 be amended and reviewed to incorporate the requirement of reasonableness in addition to honest belief in the exercise of bona fide claim of right.