DETERMINING THE AGE OF CRIMINAL AND CONTRACTUAL LIABILITY IN NIGERIA: A POTENTIAL CLASH OF REALITY
CHAPTER ONE
INTRODUCTION
1.1 Background of the Study
Children below a certain age are too young to be held responsible for breaking the law. There is wide consensus about this principle, which is spelled out in the Convention on the Rights of the Child and in other international standards, such as the Beijing Rules for juvenile justice. The Convention calls for nations to establish a minimum age ‘below which children shall be presumed not to have the capacity to infringe the penal law’, but does not set a specific age. In fact, in spite of the basic consensus, there is continuing debate about the appropriate age. This debate too often tends to arise when exceptional cases involving children who have committed heinous offenses are given prominent coverage by the media. Sometimes this has far-reaching consequences.
In England, children have become fully accountable for offending at 10 since the murder of two-year-old James Bulger by two young boys, both 10, in 1993. In New South Wales, the 1999 manslaughter trial of an 11-year old boy for throwing his 6-year-old companion into a river attracted widespread comment and the NSW Attorney-General started a review of the age of criminal responsibility of children. In Japan, the minimum age was lowered from 16 to 14 in 2001 following public outrage over the brutal beheading of a little boy by a 14-year-old in 1997. The murder of another youth by a twelve-year-old in 2003 in Nagasaki prompted the discussion again. In the U.S., the state of Arkansas lowered the age at which young people could be tried as adults for murder to age 11, after an 11-year-old and 13-year-old killed a youth with rifles at the entrance to their school. In the Czech Republik the minimum age is 15, but the Minister of Justice is considering lowering the age for particularly serious crimes, since in August 2006, six boys under the age of 15 robbed and killed an elderly woman and in February 2007 a 14-year-old boy confessed to the rape and murder of a classmate.
Experts working in this forensic field usually operate lists of criteria for assessing whether a young person could be found to be criminally responsible. They consider biological criteria like constitutional abnormality, physical development, brain damage, endocrinal and mental disorders, and sociological-psychological criteria concerning milieu, mental-moral maturity, neurotic tendencies and the significance of puberty for the act. They also consider personality factors like contacts with others, structure of relationships, feeling of self-worth, frustration tolerance, and usually they analyse possibly stressful events and the situation at the moment of the offence. From their professional, diagnostic focus on individual stories, many of them will emphasize that there can be no universal checklist or overarching criteria for criminal responsibility or maturity.
Others have suggested though that it might very well be possible to say something in general about the age of criminal responsibility. Several authors seem to be convinced that by the age of 14 young persons are generally mature enough to be held criminally responsible (that is, in juvenile court) unless there is some exceptional circumstance, like considerable developmental delay. Some even go further. They state that the understanding of the wrongfulness of punishable acts can already be presumed for 12- or 10-year old children, as long as there is no extraordinary set of circumstances.
Another point of view has been expressed recently by the Scottish Law Commission, the official law reform body in Scotland. In Scotland the lower age limit of criminal responsibility has remained 8 years since the thirties, which is strikingly low in comparison with other European countries. However, instead of recommending a higher minimum age, the Commission proposed abolition of the rule that a child has no criminal capacity below a certain age. (Scottish Law Commission 2002)[1]. The Commission had three arguments for this proposal. (Maher 2005) First, it argued that today children of 8 years of age have a greater understanding of the world than children of this age had in the past. This might suggest, in its opinion, that there could be a case for lowering the age in the Scottish rule. Second, the Commission argued that if an age of criminal responsibility was a matter of applying developmental psychology, then why was there such disparity in the ages adopted in different countries? Finally, it quoted the findings of the well-known Kilbrandon Committee, that stated that the principle that children below a certain age are too young to be held responsible for breaking the law was not based on any empirical data concerning children’s understanding: ‘The legal presumption by which no child under the age of 8 can be subjected to criminal proceedings is not therefore a reflection of any observable fact (…) It is clear, therefore, that the “age of criminal responsibility” is largely a meaningless term.’ (Committee, 1964, 73)
1.2 Statement of the Problem
Persons cannot make a valid contract, namely minor, person in a state of unsound mind and person who are disqualified from contracting by any law to which they are subject. This article is concern only with minor in contract[2]. Minors are appearing in public life today more frequently than even before. A minor has to travel, to get his dresses tailored, or cleaned, to visit cinema halls and deposit his bicycle at a stand. He has to deal with educational institutions and purchase so many things for the facility of life and education[3].
A person who has not attained the age of majority is a minor. A person is deemed to have attained the age of majority when he or she completes the age of 18 years, except in case of person of whose person or property a guardian has been appointed by the Court, in which case the age of majority is 21 years. A minor is not competent to contract or an agreement with minor is void ab initio. All agreements are not contracts but all contracts are agreements. Only those agreements are contract which fulfill the conditions of section 10 of Nigerian Contract Act, 1872. Section 10 spells for a contract parties must be competent, the consent must be free. Therefore the competency of the parties to a contract is most essentials ingredients of a contract. With some exceptions, an agreement made by a minor is voidable. The terms “minor” and “infant” are used in law to describe a person who is under the legal age of an adult. In nearly all cases, an “adult” is a person who is 18 years or older. The minor, in other words, may avoid the legal liability under a contract. After attaining the age of majority (attaining the age of 18 years), a minor may affirm or ratify the contract and therefore make it contractually binding on him. Any expression of the minor’s intention to avoid the contract will accomplish avoidance. A person who is mentally incompetent may ordinarily avoid a contract in the same manner as a minor. If the person later becomes competent after attaining the majority, at that juncture he can ratify or avoid the contract depending upon the nature of contract with a minor. A minor can legally enter into a contract in general. However, whether such contract is enforceable in the court of law will depend on a number of factors why the contract is made with a minor.
In this study an attempt is made to enlighten when minor could be liable under contract, when a minor could not be liable; what are the exceptions to liability; necessaries/services supplied to minor, beneficial contract to minor, liability under tort and other Nigerian laws, Judicial decisions both in English Law and Nigerian Law are discussed about void or voidable contract under the light of Nigerian legislations and ends with conclusion as well as recommendation.
1.3 Research Questions
The following research questions were formulated to guide the study
- What is the international state of affairs concerning legal regulation of the criminal responsibility of children?
- What are the findings and implications from developmental studies and how does it affect the age of criminal and contractual liability?
- What are the possible strategies and guidelines for the age limits in criminal law?
1.4 Aim and Objectives
The main aim of this study is to determine the age of criminal and contractual liability in Nigeria as a potential clash for reality. The specific objectives are as follows;
- To carry out an overview of the international state of affairs concerning legal regulation of the criminal responsibility of children
- To carry out an overview of findings from developmental studies and how it affects the age of criminal and contractual liability
- To proffer some suggestions for guidelines for the age limits in criminal law
1.5 Scope of the Study
This study intends to throw new light on the question of the age of criminal and contractual liability in Nigeria by bringing together some criminological findings, data from empirical research and theoretical insights. It will present an overview of the international state of affairs concerning legal regulation of the criminal responsibility of children. Then in order to obtain some idea of the often opaque, or at least not transparent, reality concealed behind these rules, several practical implications from a variety of perspectives and experiences will be discussed. This is followed by an overview of findings from developmental studies. It will become clear that, contrary to the conclusions of the Scottish Law Commission, recent research provides relevant scientific data concerning children’s understanding. Next, a conceptual framework for the evaluation of these findings will be discussed. The study will conclude with some suggestions for guidelines for the age limits in criminal and company law. The study starts, however, with a short historical introduction, which will make clear that ‘the age of criminal responsibility’ is a layered concept with different meanings.
1.6 Significance of the Study
This study will be of significance to the academia, the legal system and the society at large. It will contribute ti the existing literature on the subject matter as well as proffer solutions to existing liability problems and issues. The legal system can use this as a guide to policy framework and review. The public will be more aware and guide by the result of the study as well.
1.7 Research Methodology
The method of research adopted in this study is the doctrinal method which is essential based on consultation of textbooks, article and journals which are related to the subject matter of research. Reference is also made to Nigerian Statues as well as judicial decisions, the internet was also consulted.
1.8 Structure of the Study
The study is organized in five chapters. The first chapter presents the introduction, objectives, significance and scope of the study. The second chapter presents the literature review and clarification of concepts alongside the theory of the study. The third chapter presents the responsibility of a child, while the fourth chapter presents criminal and contractual liability in Nigeria. The last chapter, Chapter five, presents the conclusion and recommendation.
[1] This recommendation, however, was clearly not inspired by a call to be more tough on youth crime. The Commission confirmed the characteristic rule in Scots criminal law, that no child under the age of sixteen should be prosecuted for any offense except on the instructions of the Lord Advocate. (Criminal Procedure Act 1995, c.46, §42)
[2] Section 11, Nigerian Contract Act, 1872 and see also Gupta, Devinder & Kumar, P.N., Sanjiva Row’s, Commentary on Law Relating to the Contract Act, 1872 and Tenders. 11th Ed. Delhi, Delhi Law House, 2011.p.421.
[3] Avtar Singh, Contract and Specific Relief. 10th Ed. Allahabad, Eastern Book Company, 2010.
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