BY B.C OBILOR
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Sometimes in January, 2020, I received a very sad news. One of my friends lost her only child. The child was just about 2yesrs old.’What happened to the child’ I asked her, sympathetically. She told me that the child was pushed into a bowel containing a hot suya Bean drink that was just brought down from the fire. The said child that pushed my friend’s child into the hot liquid was just about 2 to 3 years of age. This was how the child met her death. Of course, she died instantly before any adult could come to her rescure.
Can the child be held liable for the death of that my friend’s child? Better still, can the parents of the child be punished? In otherwords, what is the position of the law as it relates to the criminal liability of a child below the Age of 7 years. These and many more shall form the basis of this write up.
#MEANING OF DOLI INCAPAX
According to the Oxford dictionary, it is simply a Latin phrase that is used to describe a person who is deemed in law as incapable of forming the intent to commit a crime or tort , especially by reason of age.In otherwords, Doli incapax forms the basis for the presumption in law that a child is incapable of committing an offence.
#WHO IS A CHILD?
By virtue of section 277 of the CHILD RIGHT ACT, a child is any person below the age of a 18years.However, it must be noted that the doctrine of Doli Incapax applies only to Children below the age of 7(SEVEN).
#DOLI INCAPAX UNDER THE NIGERIAN LAW.
The doctrine of Doli Incapax has been codified under the Nigerian Criminal law.Section 30 of the Criminal Code which is impari material with section 50 of the Penal Code, provides *A person under the age of 7 is not criminally responsible for any act or omission*
ILLUSTRATION
Adam is 6years old. While playing and acting like a boss in an imaginary commando war film, pushes a neighbour”s Child( Eve by name) down from a two storey building and Eve dies instantly.
Adam cannot be held liable for the murder of Eve because he is considered to be Doli Incapax, i.e incapable of committing an offence.
*professor Peter Ocheme in his book” introduction to Criminal Law in Nigeria” described them( children below 7 year of age) as legally abnormal persons.
THE BIG ISSUE
Assuming a mischievous and criminally minded adult takes advantage of the above position by sending a child who is below 7years to go and commit an offence, What will be the position? It is my humble opinion that the doctrine of Causation in criminal law will be invoked to hold the adult personally liable as a principal offender.
*Another illustration*
EBUKA, a boy of about 5years old and Chika who is 6years old were both playing football outside their compound and a fight erupted between the duo.
Ebuka slapped Chika and ran away. Chika enraged and in other to get back at Ebuka, he threw a heavy stone at the range Rover spot car belonging to Ebuka’s father and damaged the rear light.
It is my humble submission that Chika cannot be held liable for the offence of malicious damage to property. This is because, Chika is Doli Incapax.
However, can the parents be held liable for the damage in tort?
Or better still, are the parents of Chika under any legal obligation to repair the car damaged by their son? No doubt in Nigeria today, most parents will go to the extent of arresting the child and even their parents and compel them through the Nigerian police, albiet unlawfully, to make good the damaged car.
#However, legally speaking, can a parent be vicarously liable for the tortious acts of their children who are below the age of 7?*
It is my humble submission that no doubt, the parents will have a moral obligation to apologise and also contribute to the repair of the car either partially or completely, towards ensuring that the car is restored to the position as nearly possible as it were before the incidence. But can they be compelled by law to repair the car?*
In otherwords, what is the position of the law in the above instance?
It is my humble opinion that the parents, as a general rule cannot be held liable in law to repair the damaged car. Thus, the practice of holding the parents liable for tortious acts of a child below the age of 7 is unknown to law.
THE DOTRINE OF VICARIOUS LIABILITY*
For this doctrine to apply, it must be established inter Alia that the child in question is liable for the act complained of. In otherwords, the vicarous liability of the parents is tied to that of the child.
NEVERTHELESS, like the Holy Bible says, should we continue in sin so that grace may abound? God forbid! Consequently, should parents continue to escape liability because of the protection of the children?In otherwords, is there a likely way to hold the parents liable in deserving situations?
UBI JUS IBI REMEDUM*
Where there is a wrong, there ought to be a remedy. Hence, it is my humble submission that it is possible to make the parent liable in Negligence. It is a truism that an adult cannot stay at home and allow a goat to give birth while a rope is tied to it’s neck.
Thus, it is on this note that I humbly submit that in exceptional circumstances where the act of the child could have been prevented by the parent, such parent may likely be held liable in negligence for failure to exercise reasonable care to prevent the harm.
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Thus the neighbour principle that received judicial imprimatur and judicial blessings in *Donoghue v Stevenson* per Lord Denning ( of the blessed memory) can be invoked.
Thus, it is my view that parents have legal duty to prevent the acts of their children from causing harm to their neighbours. From the forgoing, it is Crystal clear that a child below 7year is not criminally liable both in criminal law and in Tort . The above presumption is irrefutable and irrebuttable.
However, it is suggested that in deserving situations, parents should be made to take responsibility for the actions of their children below the age of 7 years.
By B.C OBILOR ESQ,DIP(LAW)LL.B(HONS)B.L. ( BCOBILOR@nigerianbar.ng)
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