Assignment Question;

Discuss the Defence of Compulsion and Necessity Under the Nigerian Criminal Law.

Table of contents;

1. Abstract

2. Introduction

3. Defence of Compulsion;

i. Elements

ii. Limitations

4. Defence of Necessity;

i. Elements

ii. Limitations

5. Highliting some loopholes found in the provisions that accommodate the Defence of Compulsion and
Necessity and necessary calling for their reforms.

6. Conclusion

7. Bibliography

Abstract;

A person may actually commit an offence and perhaps may even be convicted by the court of law. But
for some reasons he may at least receive a lesser punishment or at best be discharged and acquitted.
This is because of what is called DEFENCES in Criminal Law. This paper aims to extensively discuss the
Defence of Compulsion and Necessity Under the Nigerian Criminal Law. Being the fact that, the defences
are different and independent this paper will separately discuss each of the Defences. By using
illustrations, this paper will examine the elements which must be present for the accused person to
successfully raise one of such Defences. The Defences are not absolute, rather it has some limitations,
this paper will also highlight the boundaries of such defences. Lastly the paper will be concluded by
calling for a reform of some loopholes found in the provisions that accommodate such Defences.

Keywords; Compulsion, Necessity, Criminal Law.

Introduction

The law in general and particularly the criminal Justice System is always trying to provide Justice for both
three sides (i.e Prosecution, Accused person and Even to the society at lerge). The law has defined and
recognized some defences which an accused person may raise in order to justified his action. In
criminal law, a defense is a legal argument that a defendant can use to challenge the prosecution's case
and avoid criminal liability. The purpose of a defense is to negate or mitigate the criminal elements of
the alleged offense, either by presenting evidence that rebute the prosecution's claims or by providing a
justification or excuse for the defendant's actions. The defenses of compulsion and necessity are
recognized under Nigerian criminal law1, where in the former the accused person is allowed to avoid
criminal liability in a situations where he is compelled by a threat of death or fear of imminent and
griveous harm to commit an offense. While in the latter the Accused person found himself in an
emergency situation in which has no option than to commit the offence to prevent greater harm.

DEFENCE OF COMPULSION UNDER NIGERIAN LAWS

Compulsion or Duress by threat is one of the available defences that has been codified into our Laws. It
occurs when a person is compell (by threat of immediate death or grievous harm) to carry out the
execution of a criminal Offence. In such situation accused person wouldn't be held criminally responsible
for doing such act or making such omission. Section 32 (4) of the Criminal Code2 has clearly spelt it out.
Thus;

“A person is not criminally responsible for an act or omission if he does or omits to do the act in order to
save himself from immediate death or grievous harm threatened to be inflicted upon him by some
person actually present and in a position to execute the threats and believing himself to be unable to
otherwise escape the carrying of the threats into execution”.

Section 57 of Penal Code3 has inter-alia provides that;

“Except culpable homicide and offences against the state punishable with death no act is an offence
which is done by a person who is compeled to do it by threats which at the time of doing it reasonably
cause the apprehension that instant death to that person will otherwise be the consequence...”

By critical looking and deep understanding of the two provisions quoted above, for the accused person
to successfully raise the Defence of Compulsion under these provisions the following elements are
necessary required;

1
In section 32 (4) and Section section 26 of the Criminal Code. Section 57 and 49 of the Penal Code.

2
Cap C38 Laws of Federation......

3
Cap......
1. Under these Codes the relevant threat must be either that of death or grievous harm. The threat also
must be harsher than the one the accused is complled to commit. And it must be Instant or immediate.

Any threat which is not of death or causing a grievous harm is not sufficient to use as a defence as
Compulsion. A person who has been threatened to commit an offence otherwise he will loose his Job
will not be allowed to raise this as a defence of Compulsion. That is to say any threat other than of
immediate death or grievous harm will not avail an accused person from liability.

The accused can't be allowed to raise the Defence of Compulsion when the threat is lesser than the
offence is expected to commit. For example, a person who has been compelled to kill someone
otherwise his hand would be amputated or he was compelled to cut the leg of someone otherwise he
will receive one hundred lashes. In this instances the defence of Compulsion will not be considered
because it's better to sacrifice yourself for a lesser harm than to cause a grievous harm to another.

The threat must be instant or immediate, the rational behind the provisions cannot be hard to find.
Where a person knows of an impending threat he may be expected to report or otherwise seek the
protection of the public authorities i.e police whose duties include the safeguarding of citizens' lives,
liberty and property. Thus a person cannot be heard to claim being threatened to make him steal if,
before the theft, he could have taken steps to avoid the thieves' company or report them to the police 4.
In the Australian case of R. Vs Pickard5, the 2nd Accused was threatened with a knife unless he
accompanied the first accused to a store from which the latter wanted to steal. The 2nd accused's
instruction was that he should keep watch on the street or else he would be got with a knife. In the trial
of the two accused for stealing in Australian court held that the words in section 31 (4) of the
Queensland's Criminal Code (corresponding to section 32 (4) of the Nigerian Criminal Code) 'actually
present and in a position to execute the threats' must be read strictly and that the first accused could
not reasonably be said to have been actually present with the 2nd accused who was keeping watch
outside the store. Thus the plea of Compulsion by the 2nd accused was rejected. Because here the 2nd
accused can escape and to report the incidence to the appropriate authority.

However in R. vs Hudson6, the court went further to suggest that the threat of death or grievous bodily
hurt need not be capable of being executed immediately; it suffices if it can be carried out within a short
time afterwards. In that case, two ladies were called to testify for the Prosecution. They gave false
evidence and argued that they had been threatened by a gang with serious physical injury if they told
the truth. During their testimony, they saw one member of the gang in the Court's gallery. Their Defence
of duress was accepted and the fact that the ladies could have sougth the protection of public
authorities was never been possibly effective.

4
Kharis Sufyan Chukkol, 'The Law Of Crimes In Nigeria' (Revised Edition, Ahmadu Bello University Press Limited, Zaria) (1989-
2010) 249

5
(1959) Queensland Reports 475.

6
(1971) 2 Q. B 202
2. The threat must be directed at the person setting it up as a defence himself and not at any other.
Under both codes generally the relevant threat must be directed at the accused person himself and to
no other.

Suppose A is instructed to commit an Offence (say steal) with the threat that if he refuses his wife, child
or mother will be beheaded. It is clear that under the provisions of our Codes such a man will be liable
for theft if he succumbs to the threat. The threatened harm was not directed at him personally but to a
third party7.

But however, to reject his plea of duress would seem rather harsh. In this respect, the approach of
English court acquitted an appellant who had earlier been convicted of working and assisting the
Germans during the 2nd World War. The appellant's evidence was that he had made several
propaganda broadcasts for the Germans because of the fear that should he refuse his wife and children
would be killed in one of the concentration camps. It is conceded that one values his life more than the
life and well-being of anyone else but it seems unrealistic to expect a person to stand aloof and refuse
obeying the assailant's instruction if the life or liberty of his near relation is being threatened. This is
more so in an African setting where family ties are stronger8. One may venture to say that a threat
directed at one's relations e. g, to one's mother, father, wife (or husband) or children ought to be the
relevant threat contemplated by the provisions of the Codes. Thus in Moh'd Bello vs State (1968) 1 All
N.L.R 361, where the accused's father was abused the court could have allowed the defence of
provocation if accused had been physically present at the time the abusive remarks were uttered. It is
therefore submitted that if the law can recognize the possibility of being provoked if one's relation (or
even servant) is being assaulted or abused it will be absurd to deny the defence of duress for the reason
only that a threat is not directed at the accused himself9.

3. Compulsion will never be allowed to be a defence when the Accused person is compeled to kills
someone or to commit a crime against a state which is punishable with death.

One of the limitations placed on the defence of duress in the Nigerian Criminal Law is that it cannot be
available if the offence which a person committed and with which he is being charged was murder.
Compulsion is therefore not a defence to a charge of murder and where one allows himself to be in a
situation where he will be threatened to make him kill, he will be liable if such a killing occurs. The issue

7
Kharis Sufyan Chukkol, 'The Law Of Crimes In Nigeria' (Revised Edition, Ahmadu Bello University Press Limited, Zaria) (1989-
2010) 253-254

8
Ibid

9
Ibid
arose in R. Vs Obodo10, where the accused had voluntarily joined an unlawful society and was present
when a woman was killed.

4. The person who threatened the Accused must be actually present and capable to execute the threat.

Yes, for a the accused person to raise the Defence of Compulsion the person who compelled him must
be present at a place and at the time of commiting the crime. In other words, the accused must be
under the same roof with the person who threatened him. We can see this in the case of R. vs Pickard 11,
the court rejects the plea of Compulsion though the 2nd accused and the 1st accused are not under the
same roof at the time of commiting the offence.

But this position could actually lead to hardship more especially nowadays where a person could be
threatened or compelled to commit an offence through technological means, e.g a person could be
strapped with a bomb to go to the market and carryout the bombardment while the person who
compelled him is elsewhere controlling him with a remote. And also a person could be threatened with
death by supernatural means in such situation a person who compell him might not necessary be
present.

Another element the person who make a threat must be physically capable of executing the threat so
that an adult cannot be heard to say he was forced to commit an offence by a 5 year old boy or by an old
woman.

5. In order to Successfully raise the Defence of Compulsion, the Accused must not put himself in a
situation where he will be subjected to threats.

In the case of R. vs Obodo12 while delivering the judgment of the supreme court Adetokunbo Ademola,
retired Chief Justice of Nigeria, remarked;

“....it is necessary to emphasize that if a person joins a society of which one of the objects is murder and
is present and acquiescent when a murder is carried out is pursuance of the objects of the society, it is
no defence to say that he did not commit the murder with his own hands or even that he refused a
command to do so unless the circumstances of his refusal were such as to indicate a complete and final
repudiation of the society.....”

Also in Sunday Alagba & others vs R.13, a plea of duress by a 15 year old canoe boy was rejected as there
was no evidence he was coerced and the crime with which accused were jointly charged was murder.

10
(1959) 4 F. S. C 1

11
Supra

12
Supra

13
(1944) 19 N.N.L.R 128
6. The person threatened must believe that there is no way of escaping the execution of the threat
against him, other than to commit the act in question.

For the accused to succeed in the defence of Compulsion he must reasonably believe that he has no way
to escape from commiting such an Offence in question14.

LIMITATIONS TO THE DEFENCE OF COMPULSION;

A general defence is provided where anyone commits an act or omission in order to save himself from
threatened harm. But the defence is very limited in scope15;

1. The harm threatened must be death or grievous harm, and it must be immediate (presumably if it is
not immediate the person threatened has time to seek the protection of the authorities). For example,
Suppose that X threatens Y that he will kill him tomorrow if he refuses to assist X in commiting a crime.
Now is the threat immediate? The Answer is No.

2. The harm must be to be inflicted upon the person threatened, so that the defence does not seem to
extend to the case where, for example, the threat is to be carried out against his Small son.

3. The threat must not be lesser than the offence which the accused is expected to commit.

4. The defence is limited only to offences which are not death or which is not punishable with death.

DEFENCE OF NECESSITY

Mr. Glazebrook has put the point more succinctly when he said; “In every law there are some things
when they happen a man may break the words of the law and yet not break the law itself.... for breaking
the words of law is not breaking the law so as the intent of the law is broken”16.

Necessity or Duress by circumstances is one of the Defences which is arises when a person commits an
act to avoid a greater harm or to prevent an imminent and serious danger to themselves or others. A
clear example could be found where a person is charged with criminal mischief in having destroyed a
house under Section 337 of the Penal Code he can argue that it was necessary to destroy two thatch-
roofed houses in order to avert the possibility of a fire outbreak engulfing the whole town 17. Although
14
Okonkwo and Naish, 'Criminal Law In Nigeria' (2nd Edition, Sweet & Maxwell Limited) (1964-1980) 117

15
Ibid

16
P. Glazebrook: 'The plea of Necessity in English Criminal Law' (1972) 30-31

17
Kharis Sufyan Chukkol, 'The Law Of Crimes In Nigeria' (Revised Edition, Ahmadu Bello University Press Limited, Zaria) (1989-
2010) 264
motive is generally irrelevant to the question of liability, it may in some cases be so compelling that the
law takes cognisance of it. A person is not criminally responsible if his act or omission was done under
circumstances of “sudden or extraordinary emergency”18.

The defence of Necessity has been Incorporated into Nigeria's Criminal Law. Section 26 of the Criminal
Code provides, inter alia:

“... a person is not criminally responsible for an act done or commission made under such circumstances
of sudden extraordinary emergency that an ordinary person possessing ordinary power of self-control
could not reasonably be expected to act otherwise”.

Section 49 of the Penal Code provides:

“Nothing is an offence by reason of any injury which it may cause or be intended by the doer to cause or
be known by the doer to be likely to cause if it be done without any criminal intention to cause injury
and in good faith for the purpose of preventing or avoiding other injury to person or property or of
preventing or avoiding other injury to person or property or of benefitting the person to whom injury is
or may be caused”.

Under the provisions of both the criminal and the Penal Code a person cannot benefit from the defense
of Necessity unless he can show that the course of action he embarked upon was reasonable, and
according to section 49 of the Penal Code, he acted in good faith. The infliction of bodily injury or the
destruction of property must be exercised without any criminal intention and the injury to be avoided
must be more grievous than that which the accused had inflicted19.

S.S Richardson has mentioned numerous instances where a plea of Necessity can be upheld. For
example one whose friend is seized by a crocodile cannot be liable for murder if, intending to shoot and
kill the crocodile, he shot and kill the friend. Similarly a railway employee with the honest intention of
averting a collision of two trains can benefit from the defence of Necessity if he switches one train into a
siding. Though this action may cause an accident and some deaths, it will not be as serious as that which
might have resulted if the trains were left to collide. It does appear, therefore, that a person acting
under situations of emergency must first weigh the pros and the cons20.

18
Okonkwo and Naish, 'Criminal Law In Nigeria' (2nd Edition, Sweet & Maxwell Limited) (1964-1980) 113

19
Kharis Sufyan Chukkol, 'The Law Of Crimes In Nigeria' (Revised Edition, Ahmadu Bello University Press Limited, Zaria) (1989-
2010) 265

20
Ibid
ELEMENTS OF THE DEFENCE OF NESECCITY

From the above provisions we can rightly adduced that, the following elements must be present before
the accused raise the Defence of Necessity;

1. That, the emergency must be such that an ordinary person possessing ordinary power of self control
could not reasonably be expected to act otherwise. As can be seen in the English case of R. V Dudley and
Stephens21 , where two shipwrecked seamen were found quilty of murder when they killed and ate their
companion, a cabin boy, even though they were in an open boat over a thousand miles from land, with
little hope of rescue, and had gone eight days without food, and the jury had found that if they had not
done as they had done they would probably have died before the day on which they were in fact
rescued. The test applied by the court was not that of the ordinary man. Lord Colendge C.J ruled out the
defense of Necessity ever succeeding in such a case. He remarked:

“.......the temptation to the act which existed here was not what the Law ever called necessity. Though
law and morality are not the same thing and many things may be immoral which are not illegal yet the
absolute divorce of law from morality would be of fatal consequence, and such divorce would follow if
the temptation to murder in this case were to be held by law to be an absolute defence...To preserve
one's life is generally speaking a duty but it may be the plainest and the highest duty to sacrifice it.....It is
not needful to point out the awful danger of admitting the principle which has been contended for who
is to be the judge of this sort of Necessity? By what measure is the comparative value of the lives to be
measured? In this case the weakest, the youngest, the mostly unresisting was chosen. Was it more
necessary to kill him than one of the grown up men?” The defence of Compulsion was therefore
rejected and the sailors were convicted of murder.

The same attitude obtains in other jurisdictions and the famous American writer and Judge, Benjamin
Cardozo, has asserted:

“Where two or more persons are overtaken by a Common disaster there is no right on the part of some
to kill another to save their own lives”.

2. The infliction of bodily injury or the destruction of property must be exercised without any criminal
intention and the injury to be avoided must be more grievous than that which the accused had inflicted.
For example, a driver can't benefit from the defence of Necessity when he by swerving sideways to
avoid a chicken, he knocks and kills a pedestrian.

3. That there must be and emergency or extraordinary situation.

4. That the accused has no alternative way.

21
(1884) 14 Q. B. D 273
LIMITATION TO THE DEFENCE OF NESECCITY.

The defence of Necessity is not absolute, rather it has a limit, i.e The defence of Necessity or Compulsion
can never avail an accused if his act cause the death of someone or could constitute an offence
punishable with death. In the Nigerian case of Tobiah V The Queen22 The accused and deceased were
fishermen and one night they set off to fish in different boats. Suddenly accused's net got entangled
with the net of the deceased and in trying to disentangle the nets accused's boat capsized. In a
desperate attempt to save himself he jumped onto the deceased's boat which also capsized. The
accused swam to safety but the deceased was drowned. The lower court convicted the accused of
murder and on appeal the appellate court confirmed the death sentence holding:

“(a) that accused could not benefit from the defence created by section 32 (4) of the Criminal Code as he
could swim to safety, and

(b) that there was no indication that he was in extreme necessity or that death was imminent when he
jumped onto the deceased's canoe.”

HIGHLIGHTING SOME LOOPHOLES FOUND IN THE PROVISIONS OF SECTION 32 (4) OF THE CRIMINAL
CODE AND 57 OF THE PENAL CODE

It is the constitutional power of the Legislative organ of government to enact the law 23. While enacting
the law the Legislature might not necessary consider the hardship and absurdity which the law may
cause. This is the reason why the judicial arm of Government is saddle with the responsibility to
interpret the law in order to ascertain the intention of the Legislature 24. In this context we will highlights
some lacunas in law which by strict adherence to their literal interpretation would certainly leads to
absurdity.

1. Giving a strict interpretation to the Criminal Code's words 'actually present and in a position to
execute the threat' can lead to harsh results even in Ideal situations. As we can see in the case of R. v
Pickard25 the 2nd accused might not have been under the same roof with the 1st accused but if the 2nd
accused honestly believed that the 1st accused could have got him should he refuse to obey, it would
seem unjust to reject his plea of duress.

22
(1963) All N.L.R 72,

23
Section 4 of the Constitution of Federal Republic of Nigeria 1999 (as amended)

24
Section 6 of the constitution of Federal Republic of Nigeria 1999 (as amended)

25
Supra
2. With regard to cases involving threats founded on witchcraft there are nemerous other difficulties.
Are the provisions of the Codes wide enough to cover threat founded on witchcraft?

3. Likewise can the words 'threat of an immediate death' or 'compelled to do' in the duress provisions
be interpreted widely to cover cases where a person is threatened with death by supernatural means
unless he commits a crime? If it is conceded that most Nigerians believe in one form of supernatural
power or the other it is but only logical to give sections 32 (4) of the criminal Code and 57 of the Penal
Code such a wide interpretation; yet to insist on immediate death or bodily harm to the victim of such
threats would be rather absurd.

4. Does the phrase 'capable of executing the threats' under section 32 (4) of the criminal Code have any
real meaning to those threatened with death by witchcraft? As it presently stands the phrase does
import the idea that somebody issuing the threats must physically be capable of executing his threats so
that an adult cannot be heard to say he was forced to commit an offence by a 5 year old boy and Old
woman. In cases of witchcraft however, the victim's fear may not be any less genuine. A fully grown man
may feel threatened to commit an offence by a weakling who is no match to his physique or by an old
woman who would ordinarily not survive his slap. It is submitted that in these types of situations the
overriding consideration should be whether or not the victims of such threat do honestly believe that
the threats can be carried out. If they do, it would be ethically wrong to reject their plea of duress.

5. As a non recognition by both Codes of the defence of duress in cases where the victim is different
from a person compelled to commit the offence this is serious shortcoming on the part of the
Legislature. Under both Codes the relevant threat must be directed at the accused person himself and to
no other.

These are the loopholes which supposed to be reformed by the Legislature.

CONCLUSION

It is the constitutional right of the accused person to be presumed innocent until the contrary is prove 26.
Defence in a Criminal law is an opportunity given to the accused person to state the reasons why he will
not be convicted because of one or more circumstances which can avail him from liability.

Everyone has freedom under the law to willingly attest, agree or disagree to a particular request to do
something without being forced to do it. Whenever force or threat to cause death or gravious injury is
applied on a citizen by any person or persons to act unwilingly then we have what is called 'compulsion'.
In criminal law a person acting under compulsion though acting with some measure of deliberation, is
held not to be criminally responsible because the compulsion is deemed to override responsibility for
both the actus reus and the mens rea of the crime.

26
Section 36 of the constitution of Federal Republic of Nigeria 1999 (as amended)
On the other hand, there are some emergency and unavoidable situations a person commit a criminal
act in order to prevent a greater harm from happening, that situation is termed to be 'necessity' in such
situations our legal system excuses the individuals criminal act because it's justified.

From the above we can understand that, he who is compeled to commit a crime or due to necessity
acted criminally, is by law mitigated if not totally exonerated from the liability of the crime committed.
However there are some fundamental Elements to be proved before the court of law to succeed in the
plea of those defences, which were immensely discussed in the main article.

BIBLIOGRAPHY;

1. K. S Chukkol, 'The Law Of Crimes In Nigeria' (Revised Edition, ABU press Limited) (1989, 2010)

2. C. O Okonkwo, 'Criminal Law In Nigeria' (2nd Edition, Sweet & Maxwell Limited) (1964-1980)

3. Constitution of Federal Republic of Nigeria, 1999

4. Criminal Code Cap

5. Penal Code Cap