MISTAKE
1. Introduction
2. Objective
3. Main Content
Mistake
Defences to the tort of Mistake
4. Conclusion
5. Summary
6. Tutor Marked Assignment
7. References/Further Readings
INTRODUCTION
Aperson who has intentionally invaded another interest so that ordinarily liability will ensure may yet be excused because his conduct is priviledge in the particular circumstance. As the early common Law attached liability to trespass on mere proof of direct causation it became necessary after the later admission if exculpatory consideration for the defendant to “justify” or “excuse” his conduct by specially pleading and proving the circumstances which destroyed its actionable quality. This justification became an affirmative defence.
OBJECTIVES
At the end of this unit, you should be able to;
a. Define the Concept Mistake
b. Explain the term Mistake
c. Explain under the circumstances where the defence of Mistake can avail a defendant.
d. Explain when a defendant can held for Responsible for avoidable mistake.
MAIN CONTENT
Mistake, the consequences of an act is often intended but the error consist in that such result does not constitute an invasion of another’s legally protected interest Beals V Hayward(1960) N.ZLI. 131 where a gun was fired arronously his direction, erroneously believing that it contained only a blank catridge. To illustrate this further one who cuts down a tree in the vicinity of his boundary in such a manner that it will in all probability fall on his own land commits but an accidental trespass if it crashes unto his neighbor’s. the unauthorized entry, which is the injurious effect of his activity, was neither intended nor reasonably to be anticipated and he is consequently absolved now that such an accidental trespass is no longer actionable. On the other hand, if he had thought that he owned all the lands on which the tree would possibly fall and intentionally cut it so that it would come down on land which turns out to be his neighbors, he has committed an intentional trespass under mistake. Such a mistake, even if one which a reasonable man might have made, is not as a general rule admitted as an excuse to civil liability.
Mistake
A person who does or omit to do an act under an honest and reasonable but mistaken belief in the existence of any state of thing is not criminally responsible for the act or omission to any greater extent than if real state of things has been such as he believe to exist. The operation of this rule may be excluded by the express or implied provision of the law relating to the subject.
Although the strictly liability of the early law of trespass has today been replaced by necessity of proving fault, defendants continues as a general rule, to be held responsible for unavoidance mistakes. The distinction between accident and mistakes calls for explanation. Intention, negligence and accident have reference to the consequences produced by conduct and not to the conduct itself because otherwise almost all torts would be intentional in the sense that the actions bodily activities was intended. An intentional tort, property so called, is one in which the wrong doer either desires to bring about a result which is an injury to another or believes that the result is substantially certain to follow from what he does. A negligent tort is one where the defendant as a reasonable person, should have foreseen that his conduct involves a foreseeable risk though falling short of substantial certainty that such a result would ensue. Inevitable accident finally, refers to cases where the particular consequences was neither intended nor so probable as to make it negligent. By contrast, in cases of mistake the consequences was neither intended nor probable as to make it negligent. By contrast, in case of mistake the consequences is often intended and the error consists in thinking that such a result does not constitute an invasion of another’s legally protected interests. An example is one who cuts down a tree in the vicinity of his boundary in such a manner that it will in all probability fall on his own land commits but an accidental trespass, if it crashes unto his neighbours. The unauthorized entry, which is the injurious effect of his action was neither intended nor reasonably to be anticipated and he is consequently absolved now that such an accidental trespass is no longer actionable. On the other hand, if he had thought that he owned all the land on which the tree would possibly fall and intentionally cut it so that it would come down on land which turns out to be his neighbor, he has committed an intentional trespass under mistake, the actual result which has come to pass was intended under the erroneous notion that it would not violate another’s rights. Such a mistake, even if one which a reasonabl3e man might have made, is not as a general rule admitted as an excuse to civil liability.
Self Assessment Exercise
Discuss the Raito in Ogwu v R. (1969) NRLR
Defence of Mistake
A person who does or omit to do an act under an honest and reasonable but mistaken belief in the existence of any state of thing is not criminally responsible for the act or omission to any greater extent than if real state of things has been such as he believe to exist. The operation of this rule may be excluded by the express or implied provision of the Law relating to the subject. Note. Before the defence of mistake can avail it must be a mistake of fact and not of Law.
In Ogwu v R. (1960) NRLSLR. 60 one of the accused said that he did not know that it was contrary to Law to pay a bribe in order to induce to appoint as village headman and tax collector. The Federal Supreme Court in reversing the judgment of the trial court rejected the defence of mistake as treated here for the court believe ignorance of the law is no excuse for criminal liability.
Note: it has been argued by Okonkwo Naish in their book “Criminal Law” that it there is evidence of the Law it may be strong evidence that the accused could not have intended or had a guilty mind which the prosecution must proof.
In the case of IGPNEmeoso (1957) NRNLR 213.
The accuse had demanded money from another man alledging that he had committed adultery with the accused wife and that if he did not pay he would sue for compensation under native law and custom, as he would entitled against an adulterer. The magistrate not believing that adultery had in fact being committed convicted him under section 406 of the criminal code: Thomas j allowed the appeal even though in actual adultery had been committed with respect than this decision is erroneous – there is no property involved in this case, there demand made is as relating to adultery and not relating to property.
Self Assessment Exercise
Discuss how the level of literacy in a society can affect capability in the Law of Tort (RV Guardian).
It is also suggested that in a predominantly illiterate society wher access to the law is near nil and there is inadequate public awareness of position of the Law, ignorance of the Law ought to be considered in the accessment of criminal responsibility. This approach is similar to the position adopted in some scandernavian countries.
Furthermore, the mistake belief under S.25 must relate to the existence of a state of thing and not as to the result. If the accused is fully aware of all the circumstances i.e. where a man intending to steal form a house may be mistaken as to the fact that he was entering into a house by day where as the entry was by might.
R v Gouid (1960) QLR 293
The accused introduced glycerine, detol and surf into a female virginal in an attempt to abort her pregnancy the defence of mistake was rejected on the ground that the mistake was not the mistake as to the existence of the state of things but rather as a mistake as to what consequence which flows form an act.
Moreover, the mistake to be relied upon must not only be honest but reasonable, this is where the Nigeria code differ form the defence of mistake in England where as established in Morgan V DPP (Supra) that it is sufficient it the mistake is honest but need not be reasonable.
Note: Why the requirement of honesty is essential a subjective test which will depend on the circumstances of the case and the situation in which the accuse find himself. The unsettled question is as to the scope of the requirement of reasonableness.
Gadam V R 14 WACA 442.
The WACA rejected the defence of mistake of fact by reason of which the accused believed that the miscarriage and mental illness of his wife was caused by a woman by reason of which he killed the woman. The Court said “ it could be a dangerous precedent to recognize that because of a superstition which may lead to such a terrible result as is disclosed by the fact of this case is generally prevalent among the community is therefore reasonable. The courts must think in this regard before holding of such belief unreasonable.
Note: Okonkwo and Naish critised this judgement in their own opinion the test of reasonableness should not be according to the perception of a literate person rather the prevalent view in a community, the degree of the accused litracy should be the circumstances from which the court will come to a conclusion on such matter.
CONCLUSION
A trespasser who honestly believes that he is the owner or has his authority or merely mistakes the boundary is nonetheless responsible under the entery rule. For example some mistakes negative intent as when, digging a trench, it pierces the plaintiff’s pipeline not knowing it was there. N.C.B. V Evans (1951) 2 KB 861. One who misappropriate another property does not escape responsibility own. An auctioner who sells and deliver goods on behalf that he has title, is nevertheless liable to the true owner for conversion.
SUMMARY
This unit has revealed the fact that:
a. Mistake of fact rather that mistake of Law is actionable per se.
b. Ignorance of the Law is no excuse
c. The defences to the concept of mistake.
TUTOR MARKED ASSIGNMENT
Gadan V. R Case was decided on the principle of a highly litrate society. But in view of the predominantly illiterate society we have in Nigeria can Gadan V R still be a good Law to be followed by other courts? Discuss.
REFERENCES/FURTHER READINGS
- Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishmnt (1998),
- Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
- John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London. Sweet &
- Street: The Law of Torts Swet & Maxwell (1977), London
- KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.
: The Criminal Procedure of the Northern States of Nigeria.