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ASSAULT: A CIVIL WRONG AND A CRIMINAL OFFENCE

By Amaka Ezeno, MCIArb.

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. Interference, however, slight with a person’s elementary civil right to security of the person, and self determination in relation to his own body constitutes trespass to the person. Trespass to the person may take three forms, assault, battery and false imprisonment.

An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. A battery is the actual infliction of unlawful force on another person. And false imprisonment is the unlawful imposition of constraint on another’s freedom of movement from a particular place but I shall only discuss assault in this article.

Black’s Law Dictionary, Seventh Edition defined ‘assault’ at page 1108 thus:- “The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact.”

Assault is regarded as both a civil wrong and a criminal offence. Thus, a civil wrong can be defined as a “breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her own account rather than as a representative of society as a whole.A civil action is instituted by an individual seeking redress for wrong done to him/her. The purpose of tort is to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him/her.

A criminal prosecution is normally instituted by the State or some other body expressly authorized by the law to bring criminal prosecutions for specific offences. Private prosecutions, although rare, remain possible. The purpose of criminal law is to protect the public interest and punish wrongdoers.

Any unlawful attack or application of force or violence to the person of a claimant with or without actual injury constitutes assault for which the claimant is entitled to damages in a civil action. I rely on the authority of F. B. N. PLC & ANOR. V. ONUKWUGHA (2005) 16 NWLR (PT. 950) 120 AT 152( F- G).

For the claimant/plaintiff to succeed in his/her claim for damages against the assailant, it must be specifically pleaded and strictly proved. He/she must have properly identified those who committed the tortuous act of assault on him/her. He/she must identify the assailant/s and the role each of them played in the alleged assault as was decided in the case of RANSOME – KUTI v. A. G. OF THE FEDERATION (1985) 2 NWLR (PT. 6) 211 at 221.

Under Section 15(1) of the Robbery and Firearms (Special Provisions) Act,  “assault” is defined as follows: “assault means striking, touching, moving or otherwise applying force, including heat, light, electrical force, gas, odour, or any other substance or thing whatever, if applied in such a degree as to cause injury or personal discomfort to the person of another, either directly or indirectly without his consent, or with his consent if the consent is obtained by fraud, or any bodily act or gesture, amounting to an attempt or threat to apply force of any kind as aforesaid to the person of another without his consent, in such circumstances that the person making the attempt or threat has in fact or apparently a present ability to effect the purpose.”

When a person is charged for the criminal offence of assault, the prosecution will need to establish the ingredients of the offence of assault beyond reasonable doubt to secure a conviction against the assailant.

Section 355 of the Criminal Code Law provides thus:- “355. Any person who unlawfully assaults another and thereby does him harm is guilty of a felony, and is liable to imprisonment for three years.”

Section 252 of the code defines assault as follows:- “252. A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a presentability to effect his purpose, is said to assault that other person, and the act is called an assault.”

Then section 257 provides that:- “253. An assault is unlawful, and constitute an offence unless it is authorized or justified or excused by law.”

From a community reading of the above provisions, an unlawful assault causing harm punishable under the provisions of Section 355 of the code would simply mean a strike, touch or application of any kind of force, directly or indirectly, by one person on another which is not authorized, justified or excused by law and which causes that other person, harm.

The essential ingredients or elements which constitute the offence and which must be proved beyond reasonable doubt in order to secure conviction for the offence are therefore:- “a) that there was a strike, touch or application of any kind of force by the accused person on another person b) that harm was caused to that other person thereby, and c) the strike, touch or application of the force was not authorized, justified or excused by law.

These aforesaid elements or ingredients must be established to the satisfaction of the Court, beyond reasonable doubt in the sense that the evidence must be strong and cogent in showing that the defendant and no other, in fact committed the offence.

The burden on the prosecution does not shift but remains on it throughout the trial and can only be discharged by the production of material, credible, sufficient and admissible evidence which leaves no other reasonable possibilities than that the person charged of the offence committed the offence. Nothing short of this would suffice as was held in the cases of Bakare v. State (87) 1 NWLR, 579; Agbo v state (2006) 6 NWLR (1977) 545; Uwagboe v State (2007) 6 NWLR (1031) 606; Uluebeka v State(2011) 4 NWLR (1237) 358 at 361.

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault: provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm, and to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.

This protection does not extend to a case in which the person using force, which causes death or grievous harm, first begins the assault with intention to kill or to do grievous harm to some person; nor to a case in which the person using force which causes death or grievous harm endeavored to kill or to do grievous harm to some person before the necessity of so preserving himself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quited it or retreated from it as far as was practicable as was held by the Supreme Court Per COKER ,J.S.C ( Pp. 5-7, paras. C-A ) in the case of ETO ETIM AKPAN v. THE STATE (1972) LPELR-24970(SC)

Amaka Ezeno, MCIArb.

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