THE NIGERIAN SENATE AND VOLENTI NON FIT INJURIA – A Legal Analysis of Sen. Ndume Suspension.

Volenti non fit Injuria in a Latin phrase that means to one who volunteers, no harm is done’. Volenti is an established common law doctrine which states that if a person willingly places himself in a position where an harm can result; knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort. Volenti has a complex application that requires specific facts as evident in case law. I will however restrict myself to a narrow perspective that applies to the case in question in this article.

Volenti only apply to risks that are considered reasonable in the circumstance. So a boxerSeal_of_the_Senate_of_Nigeria.svg that enters a boxing ring accepts being punched by the other boxer as that is the nature of boxing. The specific consent in such a case, overrides the protection of common law on assault and battery. Therefore, no claim for assault or any crime can be brought against the other boxer. But if the other boxer brings a baseball bat into the ring and uses it to attack, then that is actionable breach as the bat is not an acceptable or recognised boxing tool; hence it is an unreasonable act that Volenti cannot protect from.

Volenti also known as the voluntary assumption of risk, is a total defence in Tort. This means if proven, it fully exonerates the defendant relying on it. For example, consenting to a medical procedure means you cannot sue the doctor for trespass on your person afterwards.

There are usually two main elements in volenti. Firstly, that the claimant was fully aware of all the risks involved in an activity, including both the nature and extent of the risk.  Secondly, the claimant waived (either expressly or impliedly) all rights to claim damages. For instance, signing a membership contract of a club, could be considered an implied acceptance of the rules governing the club as long as the consent (signing of the contract) was given free and voluntary and not under duress. If there is a relationship between the parties that will make free consent doubtful (such as in the case of an employer and an employee), due to power disparity; then volenti may not apply; but Contributory Negligence is a possible way to resolve this.  This mitigates damages due to the contributory actions of the claimant to the situation that caused the harm.

ndume-1-650x400From the foregoing therefore and given the specific facts in the Senator Ndume’s suspension by the Senate of Nigeria; it is my submission that the suspension (however perverse it is) is legal. Every Senator signs to a code of conduct and acceptance of the rules of the Senate on their first day on the job. This fact may hold Sen. Ndume volens with regards to the internal rules of the Senate and its provision. Ndume accepted to be bound by the rules of the Senate. That is a voluntary assumption of risk.  As long as due process is followed, the Senate can rely on volenti to defend their action in this case.

Some of the cases cited by respected legal luminary Femi Falana SAN, contained peculiar facts that defers from this case; thus they are not suitable authority. For instance, in the case of the suspension of Dino Melaye and group by the Dimeji Bankole leadership of the House of Representatives, due process was not followed as they were not given opportunity to defend themselves. But in this case; Senator Ndume appeared before the Ethics Committee to respond to and defend his actions. And it was the recommendation of that committee that the Senate acted on to suspend him.

What can be challenged however is the length of the suspension. Any action by the Senate must still be judged as reasonable in law and equity. Six months suspension may be considered excessive and denying the people of Southern Borno a voice in the Senate for six months requires a more serious breach than those committed by Ndume. Hence, the Senate could be judged to have acted unreasonably by suspending him for six months. In England, since the introduction of the Law Reform (Contributory Negligence) Act 1945, the courts have been less willing to make a finding of volenti preferring to apportion loss between the parties rather than taking an all or nothing approach. This is why challenging the length of the suspension may be a better strategy than challenging the suspension itself.

It is my view that a seven to fourteen days suspension will be appropriate in this case. Please note that this is just an impartial legal analysis and not an endorsement of the actions of the Senate. Personally, I see nothing wrong in what Ndume did and there should not be any suspension at all. But as an outside observer, the Senate did not overreach its powers by suspending the Senator; although the length of the suspension seems unreasonable and therefore specifically justiciable.

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