Assault
Strictly speaking, an assault is an attempt or a threat to apply unlawful force on another person in such a way that he believes that such force is about to be applied on him. At common law, the actus reus of assault consists in the expectation created in the mind of the victim that unlawful force is able to be applied on him. The mens rea consists in intentionally causing such expectation in the victims mind. It is no defence that the offender did not in fact intend to apply such force and could not, in fact, have applied it. If force is actually applied, the offence is a battery. The distinct between an assault and a battery is that the former does not involve the application of actual force whereas the latter does. Thus, the common law maintains this distinction between the two offences of assault and battery.
Section 252 of the criminal code provides for the offence of assault in the sense that it uses the word “assault” to cover the meaning s of both assault and battery. It appears from a literal interpretation of that section that where there has been an actual application of force, no proof of international conduct is required but it is suggested that the section envisages intentional conduct and the courts will so interpret it. Section 252 requires that where a person attempts or threatens to apply force on another person he shall have actually or apparently a present ability to effect his purpose. If A points a loaded gun at B, it is an assault because A has actually a present ability to effect his purpose. If unknown to B the gun is not loaded, but A purports it to be loaded, this is also an assault because A has apparently a present liability to effect his purpose R V. St. George.
Section 252 does not say anything about the victim’s state of mind. It merely says that a person “who by any bodily act or gesture attempts or threatens to apply force,” etc., has committed an assault. Thus it would seem that a person commits an assault who points a loaded gun at another from behind or attempts to apply unlawful force on a sleeping person. It is not necessary that the victim’s state of mind should be one of fear or alarm. It is enough if he merely expects the application of unlawful force. In Brady v. Schatzel, the accused pointed a loaded gun at the prosecutor and threatened to shoot him. The prosecutor said in evidence; “I was not a bit scared”. It was held, nonetheless, that this was an assault words alone, however provoking, without any bodily gesture intended to cause an apprehension of impact, will not constitute an assault. Furthermore, words accompanying an act or gesture which would ordinarily be an assault, may explain the conduct so that no assault is committed.
Thus, in Tuberville v. Savage it was held that the plaintiff did not commit an assault when he put his hand upon his sword and said to the defendant: “if it were not assize-time, I would not take such language from you” because as the court said, “the declaration of the plaintiff was that he would not assault him, the judges being in town; and the intention as well as the act makes an assault.
Consent
To be unlawful, the assault must be done without the consent of the person assaulted. The law presumes that persons who go about in public consent to that degree of contact which is an inevitable incident of everyday life. Accordingly, if A loser his pen and B having found it pats A on the shoulder to give him the pen, no assault is committed, where persons rush to catch a bus and jostle one another in the process, no assault is committed. It is inevitable that persons who play football or other lawful games may come in bodily contact with one another. Such contacts do not constitute assault. But if a player deliberately disregards the rules and assaults another player he commits an offence.
Consent, expressly given usually negatives the offence of assault. Consent to an assault is ineffective if the assault is of a nature likely to endanger human life or to amount to a breach of peace. Consent obtained by the use of threats or intimidation is not valid consent nor is consent obtained by fraud because fraud vitiates consent.
Provocation
In Nigeria, provocation may be a valid defence to a charge of assault. Section 284 of the code provides that a person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self control, and act upon it on the sudden and before there is time for his passion to cool, provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous harm. The force used must not be disproportionate to the provocation. Provocation is a complete defence to a charge of assault. But on a charge of murder it merely reduces the offence to manslaughter.
Assault endangering life or health
Chapter 25 of the code which deals with assaults does not create any offences but in chapter 29 there are various offences of assault the least of which is a misdemeanors – see section 351.
Section 352, 353, 354, 455, 456 assault with intent to commit an unnatural act.
Chapter 28 contains several offences which involve danger to life or health. For example an assault with results in grievous harm to another may constitute an offence under section 335 of the code which provides that any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for seven years.