Drama of SCIENTER ACTION
(Barr Ojulari walks outs of his Chamber’s library and sits on his chair in his office, He starts typing on his laptop after which he calls his Intern’s attention to join him in the office, the intern obliges immediately and join him in the office)
BARR. OJULARI: I gave you an assignment.
INTERN: Yes, I am ready for oral submission of the assignment sir!
BARR. OJULARI: OK, What us the position of the law on the situation whereby a girl of under 11 years of age engages in sexual activity.
INTERN: The law deems it to be Defilement and it is immaterial if she gives consent or not, the person that has her carnal knowledge will be charged under the law for Defilement crime.[1]
BARR. OJULARI: Is there any punishment for such a person that has unlawful carnal knowledge of such a girl below 11 years old?
INTERN: Yes, The person will be sentenced to life imprisonment upon conviction. [2]
BARR. OJULARI: Is there any similarity between Rape and Defilement?
INTERN: Yes, all the ingredients of Rape is same as Defilement, just that only absence of consent or consent obtained with deciet or by force amounts to rape (3)
BARR. OJULARI: Is that all?
INTERN: The only difference is that, in the case of Defilement, whether the girl involved gave consent or not, or she enjoyed it or not, or she was even the who seduced or started the sexual activity is not tenable. The man involved would out rightly be criminally liable.[4]
(A man whose face is filled with bruises, enters the office, his left wrist is laced with plaster, his left leg is also wound with boundage, his two eye is heavy with tears and his voice is shaking like one who is being forcefully prevent from crying)
BARR OJULARI: Good afternoon sir, hope there is no problem?
THE MAN: There is, in fact, there are plenty problems, even if you placate me, I will violently decline. Would you believe that it was a dog that did this to me, a dog! A dog! (Tears rolled out of his eyes as he can not hold it any longer)
BARR OJULARI: Take it easy sir. All is well sir!
THE MAN: Nothing is well, until I get Justice. The wicked neighbour of mine who owns the dog has been warned several times to get rid of this dog, he would resort to violence anytime I warn him about this dog, the dog would be chasing passerby and wound them, you won’t believe that my wicked neighbour would still be threatening the victims?
BARR OJULARI: That is bad, that means that the owner is aware his dog’s vicious tendency.
THE MAN: Yes now, he knows, he is even proud of it. Imagine! All I want is redress in a cort of law. I have suffered a wrong, and must be provided with a remedy
BARR OJULARI: That means we will be suing him to court under SCIENTER ACTION, this is an action against the keeper of a dangerous animal because his animal has injured a person [5]
THE MAN: Thank you lawyer! Is there anything more I can know about Scienter Action.
BARR OJULARI: Sure, under the law, Scienter Action is classified into two. First is specie of animals that are naturally dangerous, which are likely to cause harm unless they are restrained, those are lions, tigers, elephants etc. Those are referred to as FERAE NATURAE in law[6].
THE MAN: FERAE NATURAE! But it wasn’t any of those aforelisted animals that attacked me, is dog also part of them?
BARR OJULARI: No, Dog belongs to the second class known as MANSUETAE NATURAE. These animals are naturally harmless, but they may sometimes harbour a vicious deposition. Another example of this are cats, goats, horse, camels and cows.[7]
THE MAN: You asked if the owner has previous knowledge of his dog’s vicious tendency, does that mean if he does not have any knowledge of such, he can not be sued?
BARR. OJULARI: I just ask that to know how to properly discharge my professional duty. In this circumstance that he has known that his dog has become vicious before it attacked you, we will just sue him for Strict Liability[8].
THE MAN: OK sir!
BARR. OJULARI: Even if he does not have any previous knowledge of his dog’s vicious tendency, he can still be sued to court for Negligence[9], he should have prevented his dog from attacking people and causing harm to them.
THE MAN: Good! He should not escape the wrath of law
BARR. OJULARI: Lest I forget, were you not the one who was teasing the dog, or you trespass into the dog’s owner’s property?
THE MAN: There is nothing like that, I was even in front of my house reading newspaper when the dog attacked me.
BARR. OJULARI: OK, because, if it you that you teased the dog into action, the owner can use that as a defence against you to go scot free[10], and if it because you trespass into it’s owner’s property that it attacked you for, you will have no claim for damages[11].
THE MAN: Huh! But that shouldn’t be.
BARR. OJULARI: Of course it would, “volenti non fit injuria” , to the consenting party, there is no injury. It would be presumed that you were the one that called for the attack and you were served what you deserved.
THE MAN: I don’t need to ask any question further, I am just arriving from the hospital, I am in severe pain, I was even admitted for a whole day to receive treatment. I must not suffer in pain.
BARR. OJULARI: Well, I feel your pain. You can make all your hospital Bill available, we will have to make it available in the court process.
THE MAN: OK sir, I am very grateful to you sir, I will do the needful to haste the process sir.
(The Man exit the chambers)
To be continued!
GLOSSARY:
CONSENT: To give assent or approval
CARNAL KNOWLEDGE: Sexual intercourse between a man and a woman, where there is at least some slight penal penetration.
PLACATE: To bring to a state of peace or quiet.
VICIOUS: Having or showing a desire to cause harm to someone
TENDENCY: An inclination towards a particular characteristic or type of behaviour.
FERAE NATURAE: Latin term meaning nature [wild] animals. Any animals that are not designated domesticated animals by law
MANSUETAE NATURAE: Latin term meaning animals which are generally domestic, presumed gentle and readily tamed.
REFERENCES:
[1] Section 218 of the Criminal Code Act
[2]. Ibid., Section 218
[3]. Section 1 (b) (c) of the Violence Against Person (Prohibition) Act, 2015
[4]. Section 218 of the Criminal Code Act
[5]. May V. Burdett (1846) 115 E.R 1213
[6]. Kodilinye and Aluko “The Nigerian Law of Torts”, Rev. Ed., Spectrum Law Publishing, Ibadan, 1996, p128.
[7]. Ibid.
[8]. Daryani V. Njoku (1965) 2 All NLR 53
[9]. Wrapper V. Border (1972) 2 Q.B 556
[10]. Sycamore V. Let (1932) 147 LT 342
[11]. Sarch V. Blackburn (1830) 172 ER
ABDULRAUF Abdullahi Adebayo, is a Law student, a Certified Teacher , a Content Creator , a Dynamic Writer and a Ghost Writer. He can be reached via +2349034904883 and [email protected]
