once there is a legal duty to act, failure to act becomes an offence. This statement underlines the concept of criminal omissions.
The law does not only punish a person for doing what he is not supposed to do, the punitive hands of the law is also upon that man who knows what he is supposed to do and does it not.
However, a thick line is drawn between what morality dictates and what the law dictates. For instance, morality dictates that if I see a person drowning, that I should dive in to save his life where it would be reasonable to do so; but if I rather choose to cross my leg and enjoy the scenery, and watch the person drown, gasping for breadth making desperate plea for help, and I do nothing, my conscience condemns me but the law does not.
WHEN THEN WILL THE LAW CONDEMN ME?
When my duty surpecedes a mere moral obligation, the law condemns me; when the duty is a legal duty.
Taking the scenario above, if my job is to save people from drowning (a lifegaurd), suppose it happens in a pool where I am employed, then the law condemns me, as the duty is now a legal one. see R v. Dytham (1979) QB 722
This legal duty may be imposed by statute, by contract or implied by court.
For instance, The Children and Young Persons Act 1993 imposes a legal duty on parents or anyone standing in loco parentis to feed and provide medical care for their ward, and makes neglecting a child an offence. There is also a legal duty to take care on aged members of the family, once a relationship of reliance is established. R v. Stone and Dobinson (1977).
Also, the Road Traffic Act imposes on motorist the duty of reporting road accidents to the police.
Legal duty could be imposed by contract- see R v. Pithwood (1902) and R v. Benge (1865).
In all cases where there is a legal duty, there would only be liability for failure to act if it is reasonable to act in the circumstance. That is, the law will not impose on a man the duty to save another at his own peril.
QUESTION: A is sick with typhoid. His father, a pastor of Grace Revival Ministries refuses to take him to the hospital, stating that he had been administered holy water and should get well. A's condition worsens and his father still remain adamant despite the plea of his wife that A should be taken to the hospital for proper treatment. 3 days later, A dies of Typhoid, could a charge of murder be sutained against A's father?
Tuesday 23 April 2019
CIVIL JURISDICTION OF COURTS IN NIGERIA
Jurisdiction refers to the power or authority of the court to adjudicate over a specific subject matter. Jurisdiction is a matter of law, so usually the Constitution or the law creating the court will prescribe it's jurisdiction.
TYPES OF JURISDICTION
There are different types of jurisdiction, these are:
1. Limited and Unlimited Jurisdiction: when the Jurisdiction of a court is limited this means that the court has jurisdiction to adjudicate over specific matters but not over every matter (I.e the Jurisdiction of the court is restricted to specific matters). Whereas, where jurisdiction is unlimited it means the court can adjudicate over all matters. Presently, no court in Nigeria has unlimited jurisdiction. Previously, the State High Court used to have unlimited jurisdiction.
2. Territorial Jurisdiction: The jurisdiction of certain courts is limited to their geographical location. For instance, the jurisdiction of the High Court of a state is limited to their respective states. See OGBUANYIYA v OKUDU
3. Divisional Jurisdiction: Certain courts are divided into judicial divisions. The division into judicial divisions is however merely for administrative convenience. Thus, commencing an action in the wrong division will not vitiate proceedings.
4. Constitutive Jurisdiction: This means for a court to properly exercise jurisdiction over a matter it must be constituted by the required number of judges/justices.
5. Original, appellate and exclusive jurisdiction: A court is said to have original jurisdiction where it presides over a matter as a court of first instance. A court has appellate jurisdiction where appeal from a matter in a lower court lies to it. Similarly, a court is said to have exclusive jurisdiction where it has the right to hear a matter to the exclusion of all other Courts.
6. Procedural and Substantive Jurisdiction: Procedural Jurisdiction refers to the procedure of law by which a matter is brought. Lack of procedural jurisdiction may not vitiate proceedings as the parties can waive it. See MOBIL v LASEPA. Substantive jurisdiction on the other hand refers to the powers of the court to adjudicate over a specific subject matter. Substantive jurisdiction is so crucial that the parties cannot waive it. Lack of substantive jurisdiction will invalidate proceedings. MAXEELL v UAC
The issue of jurisdiction is so crucial that once it is raised the court must stop itself and consider it; it can also be raised by the court suo motu. See OGUNSANYA v DADA
The issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal. However, where raised for the first time on appeal, the leave of court must be sought. OSHATOBA v OLUJITAN
As the court stated in MADUKOLU v NKEMDILIM for the court to properly exercise it's jurisdiction, three things must be present:
1. The subject matter must be that which is within the Jurisdiction of the court.
2. There must be no element in the case to prevent the court from exercising its jurisdiction. (I.e the court must be properly constituted by the right number of judges/justices, each judge/justice must be qualified to seat on the matter etc)
3. The matter must have been brought before the court initiated by due process of law and all conditions precedent must have been fulfilled.
TYPES OF JURISDICTION
There are different types of jurisdiction, these are:
1. Limited and Unlimited Jurisdiction: when the Jurisdiction of a court is limited this means that the court has jurisdiction to adjudicate over specific matters but not over every matter (I.e the Jurisdiction of the court is restricted to specific matters). Whereas, where jurisdiction is unlimited it means the court can adjudicate over all matters. Presently, no court in Nigeria has unlimited jurisdiction. Previously, the State High Court used to have unlimited jurisdiction.
2. Territorial Jurisdiction: The jurisdiction of certain courts is limited to their geographical location. For instance, the jurisdiction of the High Court of a state is limited to their respective states. See OGBUANYIYA v OKUDU
3. Divisional Jurisdiction: Certain courts are divided into judicial divisions. The division into judicial divisions is however merely for administrative convenience. Thus, commencing an action in the wrong division will not vitiate proceedings.
4. Constitutive Jurisdiction: This means for a court to properly exercise jurisdiction over a matter it must be constituted by the required number of judges/justices.
5. Original, appellate and exclusive jurisdiction: A court is said to have original jurisdiction where it presides over a matter as a court of first instance. A court has appellate jurisdiction where appeal from a matter in a lower court lies to it. Similarly, a court is said to have exclusive jurisdiction where it has the right to hear a matter to the exclusion of all other Courts.
6. Procedural and Substantive Jurisdiction: Procedural Jurisdiction refers to the procedure of law by which a matter is brought. Lack of procedural jurisdiction may not vitiate proceedings as the parties can waive it. See MOBIL v LASEPA. Substantive jurisdiction on the other hand refers to the powers of the court to adjudicate over a specific subject matter. Substantive jurisdiction is so crucial that the parties cannot waive it. Lack of substantive jurisdiction will invalidate proceedings. MAXEELL v UAC
The issue of jurisdiction is so crucial that once it is raised the court must stop itself and consider it; it can also be raised by the court suo motu. See OGUNSANYA v DADA
The issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal. However, where raised for the first time on appeal, the leave of court must be sought. OSHATOBA v OLUJITAN
As the court stated in MADUKOLU v NKEMDILIM for the court to properly exercise it's jurisdiction, three things must be present:
1. The subject matter must be that which is within the Jurisdiction of the court.
2. There must be no element in the case to prevent the court from exercising its jurisdiction. (I.e the court must be properly constituted by the right number of judges/justices, each judge/justice must be qualified to seat on the matter etc)
3. The matter must have been brought before the court initiated by due process of law and all conditions precedent must have been fulfilled.
WHAT IS EVIDENTIAL WEIGHT?
This refers to the importance that the judge or jury attaches to a piece of evidence. It is an abstract science in that there is no physical scale with which a judge or jury can measure whether a piece of evidence is more important than another; so it's more of a question of logic and inference. It also depends on the opinion of a judge or jury as to whether he believes a particular witness or not.
The admissibility of evidence is one thing, the weight the court would attach to it is another. The court may admit a piece of evidence and yet attach no weight to it. That is, the piece of evidence is of no value when the court is reaching it's conclusion. (see Kolawole v. The State LER[2015] SC.82/2012)
Testimonies and pieces of evidence which are altogether unconnected with a fact in issue carry no weight at all. The closer the connection of a piece of evidence with a fact in issue, the greater the weight it carries.
Also the more reliable the judge or jury thinks a witness testimony is, the greater the weight that will be attached to it. If a judge or judge does not believe a witness or feels that his accounts are untrue or unreliable for numerous contradictions, little or no weight will be accorded to his testimony.
Section 34 of the Evidence Act 2011 outline factors the court may consider in determining the weight of a statement, these include:
1. Inference as to the accuracy or otherwise of the statement.
2. Contemporaneity of the statement.
3. Whether the maker had an incentive to misrepresent facts
Weight is important because it helps the judge or jury in reaching its verdict. At the end of the trial, the judge of jury would have to weigh the evidence adduced on both sides to determine in whose favour the scale of justice tilts.
When determining what weight will be accorded to a piece of evidence, the court would look at the quality of evidence and not its quantity. In other words, the testimony of one or two witnesses may have more weight that the speculations of 20 others. (See Trade Bank Plc v . Dele Morenikeji (Nig.) Ltd (2005) 6 NWLR ( Pt. 921) 309)
The admissibility of evidence is one thing, the weight the court would attach to it is another. The court may admit a piece of evidence and yet attach no weight to it. That is, the piece of evidence is of no value when the court is reaching it's conclusion. (see Kolawole v. The State LER[2015] SC.82/2012)
Testimonies and pieces of evidence which are altogether unconnected with a fact in issue carry no weight at all. The closer the connection of a piece of evidence with a fact in issue, the greater the weight it carries.
Also the more reliable the judge or jury thinks a witness testimony is, the greater the weight that will be attached to it. If a judge or judge does not believe a witness or feels that his accounts are untrue or unreliable for numerous contradictions, little or no weight will be accorded to his testimony.
Section 34 of the Evidence Act 2011 outline factors the court may consider in determining the weight of a statement, these include:
1. Inference as to the accuracy or otherwise of the statement.
2. Contemporaneity of the statement.
3. Whether the maker had an incentive to misrepresent facts
Weight is important because it helps the judge or jury in reaching its verdict. At the end of the trial, the judge of jury would have to weigh the evidence adduced on both sides to determine in whose favour the scale of justice tilts.
When determining what weight will be accorded to a piece of evidence, the court would look at the quality of evidence and not its quantity. In other words, the testimony of one or two witnesses may have more weight that the speculations of 20 others. (See Trade Bank Plc v . Dele Morenikeji (Nig.) Ltd (2005) 6 NWLR ( Pt. 921) 309)
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