Written by Timothy Oputa LLB (in view)
Introduction
In the past decades and still counting, dogs have been considered to be man’s best friend. Unsurprisingly, the popular simile; “as faithful as a dog” only reinforces this stance. For various reasons and purposes, people keep different kinds of animals as pets. More thrilling to note is the fact that wild animals are increasingly kept as “exotic pets”. Fairly recently, Insider[1] reports that about five thousand Tigers live in legal captivity—many as privately owned pets.[2] It is therefore no gainsaying that people keep both domestic and wild animals for various purposes. However, in Nigeria, keeping dogs as pets is more rampant across the nation.
Worthy of note is that, like every other property, the right to own and keep animals are not without some legal restrictions and regulations which every animal/pet owner should beware of. It follows, therefore, that an owner/ keeper of any animal as a pet, could in the appropriate instances, incur certain legal sanctions amongst other legal implications. Accordingly, this article examines the liability of an owner or keeper of pets in Nigeria.
Animals and Pets Defined
Under the Animal Disease Control Act,[1] animal is defined to mean “horse, mule, donkey, camel, cattle, cow, bull, bullock, heifer and calf, Buffalo, sheep, goat, swine, dog, cat, laboratory animal, wild animal and includes bird, rabbit and poultry (domestic fowl, turkey, duck, goose, parrot and any birds of the parrot family, pigeon, guinea fowl and ostrich). Essentially, in the eyes of the law, the term “animal” includes all living creatures not human.[2] On the other hand, a pet is any animal that is kept for pleasure rather than for commercial purposes. In this article, however, the emphasis would be on Dogs as they are the commonest pets across the country.
Relationship Between Dogs and Man
Psychologists believe that the human-canine relationship is a bidirectional attachment bond which resembles that of the typical human caretaker/infant relationship, and shows all of the usual hallmarks of a typical bond.[1] In addition, the fact that dogs are obedient, playful, loyal, intelligent, and easily trained make them the most popular among pet owners, enjoying up to 33% ownership.[2]
As a general rule, the keeper of an animal is liable for any damage done by it.[3] The reason for this being that the animal is considered to be the property of its owner, hence, the law holds the owner/keeper of the animal strictly liable for injuries caused by their animals. Liability for animals could be further classified into two broad categories viz:
- Cattle trespass; and
- Scienter action (liability for dangerous animals)
The examination of the former classification (cattle trespass) falls outside the scope of this article, hence we will consider extensively the latter classification—scienter action.
Scienter Action
Scienter action simply means action when there is knowledge. It is a an area tort law that deals with liability for damages done by animals to humans. Under this head, liability is predicated on whether the owner/keeper of an animal had prior knowledge of the animal’s conduct. Again, under scienter action, two further classifications of animals arise, namely:
- Animal Ferae Naturae (ferocious animals); and
- Animal Mensutae Naturae (domestic animals).
The term “ferae Naturae” is a Latin expression which means “wild animal”, it refers essentially to animals that are by their nature ferocious, and by law are not designated domestic animals. Examples of animals under this classification include; tigers, snakes, lions etc. As was established in Candler v Smith,[1] negligence by the owner is presumed when farae nature causes injury to someone. For this class of animals, knowledge of the fact that the animal has an aggressive tendency is imputed to the owner.[2]
The law relating to this is well established and trite by virtue of the extension of the rule in Ryland v Fletcher,[3] and the application of the same to animal liability. Accordingly, the position of the law is that the keeping of animal ferae nature attracts strict liability to the owner/keeper where such animal causes damage to other animals or human beings. Essentially, the rule in Rylamds v Fletcher is to the effect that a person whom for his own purposes brings on his land a non-natural user[4] likely to do mischief if it escapes, must keep it at his peril, as he would be liable for all the damage which is the natural consequence of its escape. In applying this rule to animal liability, a non-natural user of land is deemed to be the animal/pet brought in by the owner, hence, the pet owner is strictly liable for damages caused by his pet where it escapes and causes damage.
The reason for this stance is not far-fetched seeing that such kinds of animals are intrinsically dangerous, notwithstanding the fact that some of them may be tamed. This is good law. The case of Behrens v Bertram Mills Circus,[5] is apposite to illustrate the point. In this case, the owner of a tame elephant was held liable where the elephant without any aggression knocked down the plaintiff even though the elephant had never hurt anyone in the past.
The rules are slightly different with respect to the second class of animals—mensutae naturae (meaning “tame by nature”), this is because they are naturally innocuous, docile and normally tame. They are domestic animals and do not generally have a savage disposition or the propensity to cause harm, but may still cause harm or attack human beings. Dogs squarely fall into this category. Accordingly, the position here is that for the owner or keeper of animal mensutae naturae e.g; dogs, it must be proved that:
- the said animal caused the damage;
- the animal had a savage or vicious tendency; and
- the owner was aware of this tendency.
In the case of Daryani v Njoku,[6] the defendant’s dog attacked and bit the plaintiff. It was also established in evidence that the same dog on a previous occasion bit a housemaid and the incident was reported to the owners. The owner of the dog was held liable for the damage. Also, in the case of Hudson v Robert,[7] the plaintiff who wore a red handkerchief on his neck was gored by the defendant’s bull. It was established that the bull was irritated by the red handkerchief and that the defendant was aware of this vicious tendency, hence they were held liable.
Conversely, where there is no evidence of vicious tendency or previous attack of the animal, the owners would not be held liable.[8] Furthermore, it should be noted that the owners of this class of animal will not be liable where the animal was acting according to its instincts.[9] Lastly, it should be noted that there is no legal restriction on the amount of animals[10] an individual may own, in so far as he keeps the animals within the confines permitted by law.
Regulation of Animal Ownership in Nigeria
Certain laws regulate the ownership and keeping of animals in Nigeria. These laws include:
- The Dogs Act of 1958,
- Dogs Laws of various states,
- Animal Disease Control Act of 1988; and
- The Criminal Code of 1990.
- The Constitution of the Federal Republic of Nigeria 1999.
By virtue of section 5 of the Dogs Act, owners of dogs may release the dogs to run at large provided the dog is tied on a leash by the owner and is constrained from biting or licking any human being. Also, pursuant to section 3 of the Dogs Law of Lagos State, any person who keeps a dog over the age of six months without a license commits an offence. Furthermore, under section 450 of the Criminal Code, any person who wilfully and unlawfully kills, wounds, or maims any animal capable of being stolen is guilty of an offence. Lastly, under section 44 of the Constitution[1] the right to own property, which in terms of the present disquisition refers to animals/pets, is guaranteed and protected.
Conclusion
Like in other jurisdictions, ownership of pets is permissible, however, the same must be within the confines permitted by law. Accordingly, consequent upon the freedom to own pets or keep animals are certain requirements and duties imposed by law on the owners/keepers of pets and animals of any kind. To that extent, the various laws regulating the ownership of pets and other animals have been duly espoused in the discussions above. In sum, as a general rule, the owner or keeper of an animal is prima facie liable for damage caused by the animal. Like every general rule, this rule also admits of certain exceptions which has been elaborately espoused on above.
[1] CFRN, 1999 as amended.
[1] 179 S.E.395, 50 Ga.App.667.
[2] Daryani v Njoku (1965) 2 All NLR 53 at 127.
[3] (1868) LR 3 HL 330.
[4] A non-natural user is anything not originally or by nature on the land.
[5] (1957) 1 All ER 583.
[6] (1965) 2 All NLR 53
[7] 155 ER. 724.
[8] Glansville v Sutton (1928) 1 KB 571.
[9] See Burckle v Homes (1926) 2 KB 125, where a cat killed 14 birds and the owner was not held liable because the cat acted according to its natural instincts.
[10] Whether ferae naturae or mensutae naturae.
[1] Supra.
[2] Arslan Hassan, ‘Dogs in Nigeria: What You Need to Know ‘, [2022], Guest Post, <https://www.petlovers.com.ng/dogs-in-nigeria-what-you-need-to-know%EF%BF%BC/>, Accessed 9th of March 2023.
[3] North v Wood (1914) 1 KB 629.
[1] ADC 1988, s24.
[2] Bernardine v City of New York 294 N.Y. 361 (N.Y.1943).
[1] A global news publication.
[2] Kristine Solomon,’14 Animals that are surprisingly Legal to Own in America as Pets ‘ [2019], Business Insider, <https://www.businessinsider.com/animals-legal-pets-us-surprising-2019-10?r=US&IR=T#the-majority-of-tigers-live-as-pets-not-in-the-wild-2 > Accessed 8th of March 2023.
