The criminal law is the foundation of the criminal justice system. The law defines the conduct that may lead to an arrest by the police, trial before the courts, and incarceration in prison. When we think about criminal law, we typically focus on offenses such as rape, robbery, and murder. States, however, condemn a wide range of acts in their criminal codes.
Criminal Law is different from civil law, In the sense that criminal law is a system of laws concerned with punishment of crimes. While, in civil case, two individuals dispute their rights.
A criminal prosecution involves the government (represented by a judge), deciding whether to punish an individual for either an act or an omission.
Criminal law is also defined as a codified set of rules that control and regulate certain acts which are criminal in the society.
Criminal law is a system of laws concerned with punishment of individuals who commit crimes in the state.
Criminal law is the body of law that defines acts or omissions which can be regarded as crimes or offenses.
Section 2 of the Criminal code defines crime as an act or omission which renders the person doing the act or making the omissions liable to punishment under a written law. This suggests that no act or omission that anybody makes are regarded as crime unless it can be connected to a written provision of law. The two principal laws regulating crimes in Nigeria is the Criminal code for the South and Penal code for the North.
DIFFERENCES BETWEEN CIVIL AND CRIMINAL LAW
- Purpose: For criminal law, the purpose is to punish offenders while civil law awards damages.
- Nomenclature: In civil cases, the parties are known as claimant/plaintiff and defendant’s while the parties are known as complainant/defendant in criminal cases.
- Mode of commencement: Criminal cases are commenced either by filing of charges or information while civil cases are commenced either by plaints, writ of summon, petition, originating summon
- Standard of proof: In criminal cases, an offence must be proved beyond reasonable doubt but in civil cases, it is on a balance of probability.
- Legal representation: In civil matters, a party can do without legal representation while criminal cases involve having legal representation.
- Limitation of time: civil cases are statute bound by time while most criminal cases are not statute bound by time.
- Termination of the process: civil matters could be discontinued by claimant/plaintiff while criminal cases cannot be discontinued
- Alternative Dispute resolution is not applicable in criminal matters while it is applicable in civil matters
A crime is any behavior or offense which is punishable by the law in any given State. It is any act prohibited by the laws in a state, which has dire consequences.
ELEMENTS OF A CRIME
Every crime has at least three elements;
- An Act- which is known as Actus reus. Also called “guilty acts”. This is the physical act of the crime itself.
- A criminal intent – also known as Mens rea. Which means “guilty mind”. This deals with the intent.
- And a concurrence of both.
CATEGORIES OF CRIME
- Felony and misdemeanors. Some states Felonies are punishable by death or by imprisonment for more than a year. Other offenses like misdemeanor, provide for minor offenses that do not result in imprisonment; these are referred to as violations or infractions.
- Mala in se crimes are inherently evil; mala prohibita crimes are not viewed as inherently evil.
- Crimes also may be categorized by subject matter; examples are crimes against a person or property.
It is a legal principle in criminal cases which states that every person is innocent until proven guilty, that until a judge pronounces an accused person guilty, they are to be treated the same as any regular citizen. Anything other than this would be a breach of the individuals Fundamental Human Right.
Section 36(5) of the 1999 constitution put it in this way;
(5) “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
An individual can then sue for breach of their fundamental human rights if at any point they experience discrimination while facing a court case. One Element of the Presumption of Innocence lies in the burden of proving the guilt of the accused person which lies on the Prosecution. The Prosecution has the burden of proving the guilt of an individual and they do this by producing enough evidence and argument to prove BEYOND REASONABLE DOUBT that such person Is guilty. It doesn’t matter what charges are brought to the prosecution, if the government cannot prove beyond reasonable doubt that the defendant is guilty in trial then, legally, the person would be found not guilty and free to go.
PROVE BEYOND REASONABLE DOUBT
This simply means establishing the guilt of the accused person with compelling evidence. This was given judicial credence in Nwachukwu OSHA V. State Appellant with two others who were charged before the Ikeja High Court with the offence of robbery punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. At the conclusions of the trial, the trial Judge found only the appellant guilty of the offence as charged on information. The other two were found not guilty and were accordingly acquitted and discharged. Appellant was sentenced to death by hanging or by firing squad as the Governor of Lagos State may decide.
Appellant appealed against his conviction to the court of Appeal. The court of appeal allowed the appeal and set aside the conviction for robbery under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 1970. In its place, a conviction for the offence of Robbery under section 1(1) of the same Act, with imprisonment for 21 years was substituted.
The appellant further appealed to the Supreme Court and the only issue for determination is whether the court of Appeal was right on the evidence before them having found the appellant not guilty of the offence under section 1(2)(a) to convict him of offences under section 1(1) without calling on Counsel to address the Court on the desirability of such a course.
- The only ingredient in the charge which promoted the offence from the one of robbery simpliciter under section 1(1) to aggravated robbery under section 1(2)(a) was the interpretation given to the effect of the toy gun by the trial Judge. This having been rejected, and correctly too, by the court of Appeal, the fact of taking away the bag of money with threat of violence which is sufficient for robbery under section 1(1) was established.
- There is no doubt that the appellant in this case had notice that he was standing trial for armed robbery. The appellant had defended himself on the allegations and no additional evidence or facts other than those led at his trial was introduced to support his conviction for the lesser offence.
In proving beyond reasonable doubt, you must establish all the ingredient of an offence and leave no room for doubt in the mind of the court.
To fully Understand proof beyond a reasonable doubt and to be found guilty of a crime, there must be proof beyond a reasonable doubt that you;
- you did something against the law, and
- you had a guilty state of mind when you broke the law.
It’s not enough for the judge or jury to believe you’re probably guilty. Proof beyond a reasonable doubt means proof that is close to an absolute certainty. If the judge or jury is sure you committed the crime based on the evidence, that is enough. They have been satisfied beyond a reasonable doubt that you’re guilty. A reasonable doubt is based on common sense. If the judge or jury has any doubt and is not certain that you’re guilty after looking at the evidence, you must be acquitted.
The criminal law prohibits conduct that causes or threatens the public interest; defines and warns people of the acts that are subject to criminal punishment; distinguishes between serious and minor offenses; and imposes punishment to protect society and to satisfy the demands for retribution, rehabilitation, and deterrence. Criminal laws are established for the following purposes.
- DETERRENCE: This involves preventing other persons from committing similar crime because of the punishment
- INCAPACITATION: It is applied in more serious crime where one will be rendered incapable of committing that crime again.
- REHABILITATION: This involves reforming an offender through a means
- RETRIBUTION: Paying the offender back in his own coin
- RESTITUTION: Restoring the injured party back to his normal position. The law makes it possible to resolve conflicts and disputes between quarreling citizens. It provides a peaceful, orderly way to handle grievances. Protecting individuals and property. Criminal law protects citizens from criminals who would inflict physical harm on others or take their worldly
The history of criminal law in Nigeria can be traced back before the arrival of the British to colonize Nigeria. Then, the country administered criminal justice through its native customs and laws. In the southern protectorate, justice was administered using native customs. In the northern protectorate, the Islamic laws was made use of.
In 1863, after the arrival of the British, upon taking over Lagos as a crown colony. The British then introduced the criminal justice system which was only applied to the crown colony, which was Lagos. While in the protectorates, the native laws were still applicable.
2.After gaining hold of the north in 1904, the British introduced what was known as the Criminal Code. By 1914, after the protectorates were merged, there were three criminal justice system in operation.
1.English criminal law in Lagos,
- Criminal Code in the North and
- the indigenous criminal law customs in the south.
To resolve this, the British decided to make the provisions of the Criminal Code applicable to the whole of Nigeria in the year 1916. Which resulted in a clash between the criminal code and the Islamic law. One of such contention was that the Islamic law had a method of punishment that was not recognized in the criminal code. It also didn’t recognize Provocation to a death sentence in manslaughter. Thus section 4 of the criminal code was amended in other to resolve this.
S.4 of the Constitution at first, read:
“No person shall be liable to be tried or punished in any court in Nigeria, other than a native tribunal, for any offence except under the express provision of the code or some other ordinance or some law or some order-in-council made by his majesty for Nigeria.”
The amendment removed the phrase “other than a native tribunal” from S.4 of the Criminal Code. This was thought in many quarters to remove the powers of the native courts. However, the criminal jurisdiction of the native courts was saved by the provisions of S.10 of the Native Court Ordinance 1933.
The case that further clarified all ambiguity on the issue was that of Gubba vs Gwandu Native Authority (1947) WACA vol 12. In this case, the appellant was sentenced to death for murder by an Alkali’s Court. However, the appellant had a defense of provocation but it was not considered by the Alkali’s court because provocation wasn’t recognized under Islamic law. If the Alkali’s court had applied the Criminal Code, the death sentence would have been mitigated to the sentence for manslaughter.
On appeal, the West African Court of Appeal nullified the decision of the lower court. It held that customary courts could only fully apply customary law in cases which are not covered under the Criminal Code. If the cases are covered by the criminal code, customary law could not be applied.
This judgement caused a lot of discontentment amongst the Muslim community as Islamic law was being relegated to the background. This was due to the fact that the criminal code covered most aspects of criminal law. To solve this issue, a committee was set up.
The committee proposed that a Customary Court trying a criminal case had the right to try and sentence the case under the customary law without paying regard to the provisions of the Criminal Code. This was applied by the courts in cases like Tsamiya vs Bauchi Native Authority (1957) NRNLR.
The principles followed in the above cases were however truncated in the case of Maizabo vs Sokoto Native Authority (1957). In this case, the court held that:
Though a Native Court has power to try a case under Native law and custom, it cannot impose a higher sentence than the accused would have gotten had his case been tried under the Criminal Code.
This meant that the case could be tried under the Customary Law but for sentencing, recourse had to be made to the Criminal Code.
This further caused more conflict in the Northern region. To resolve this, a committee was set up in 1958 to address the issue. The committee proposed either the whole acceptance of English Criminal Law, the whole acceptance of Islamic Law or a Hybrid between both of them.
After heated debates and extensive consultation, it was decided that a hybrid was the best choice. This was brought into effect through the introduction of the Penal Code. This was considered because it was already been applied successfully in a Muslim community (Sudan). The Penal Code was also modeled after the Indian Penal Code of 1860.
The Penal Code contained some elements of Islamic law through the criminalization of certain acts like Adultery; SS.387 and 388, Drinking of Alcohol; s.403, insulting the modesty of Muslim Women; s.400. The code also preserved the punishment of hard lashing; s.68(2).
Thus, Customary Criminal Law is no more applicable in the north due to the provision of S.3(2) of the Penal Code.
SOURCES OF NIGERIAN CRIMINAL LAW:
- Judicial precedent: Judicial precedent originates from the principle of stare decisis which means ‘let the decision stand’. It means that similar cases must be treated alike. The reason for this is to achieve uniformity and certainty in the administration of justice. Therefore, judicial precedent can be defined as the decisions of the court based on the material facts of a case, it could be called judicial precedent, stare decisis or case law. It is the principle of law upon which a judicial decision is made. It’s not all the aspects of a judgement that are relevant in determining the principle decided in a court. It is the ratio decidendi that is relevant in determining the issue in court. However, the other parts of the judgement are not entirely useless. The other parts of the judgement are referred to as obiter dictum. Although an obiter dictum is not really a present judgement, in a later case, it can be adopted as a ratio decidendi.
- Nigerian constitution: The 1999 constitution of Nigeria as amended serves as the official medium of laws in Nigeria.
- Received English Law: These are laws that were in operation in England and due to the reception of English law, they become applicable in Nigeria. The reception of English law deals with the way the received English law was accepted into the Nigerian legal system. The major reception act in Nigeria is the Interpretation Act. The Interpretation Act receives English law in S.32(1) which provides that the rules of common law, the doctrines of equity and statutes of general application which are within the competence of the federal legislature in existence before 1900 shall be in force in Nigeria. However, S.32(2) provides that their application is limited subject to Nigerian jurisdiction or when there is a Nigerian federal law or court decision available. Received English laws are; Common Law, Statute of General Application)
- Legislation: This is the most important source of Nigerian law. It is usually made by the legislature which consists of the House of Representatives and the Senate. They are referred to as the National Assembly by S.4(1) of the Constitution. Legislation is classified into statute or subsidiary legislation. Statutes are laws that originate from any chamber of the National Assembly.
- Subsidiary legislation is those that emanate from a body that is not the legislature. They can also be called delegated legislation. These bodies are usually empowered to make law by an enabling statute of the National Assembly. Subsidiary legislation can be called rules, legislation, by-laws, instruments, orders etc. Also, a subsidiary legislation must not exceed the limit of the power delegated to it by the enabling statute. Thus, subsidiary legislation is inferior to statutes. This means that a statute can repeal or amend the power of a subsidiary legislation. Some examples of legislation are, Laws, Bye-laws, Edicts, Decrees
- Customary Laws: Customary laws go hand in hand with the 1999 constitution in Nigeria. They both serve as sources of laws in a state.
- Islamic Laws: Islamic laws are majorly used in the northern part of Nigeria. They defer from customary laws which are majorly in use in the southern part of Nigeria. Some of the laws accepted in the north are not acceptable in the south, like polygamy etc.
Offenses are classified for the purpose of trial and punishment. They are a means of distinguishing the gravity of the offense and the amount of punishment for which someone convicted of the crime would receive.
For the purpose of trial, offences are classified into indictable and non-indictable offences. according to the provision of s.494 of the Administration of Criminal Justice Act 2015 (ACJA), an indictable offence is one that is punishable by an imprisonment of more than two years or a fine exceeding forty thousand naira. It is also not punishable on summary conviction. From this, it follows that a non-indictable offence is one that is punishable with imprisonment of less than two years, a fine less than forty thousand naira and is punished by summary conviction. Offenses can be classified into Felony, Misdemeanor and Simple Offenses.
Felonies are the most serious classification of crimes, punishable by incarceration of more than a year in prison and in some cases, life in prison without parole or capital punishment. Both property crimes and person crimes can be felonies. Murder, rape, and kidnapping are felony crimes. Armed robbery and grand theft can also be felonies.
Not only can the person who committed the crime be charged with a felony, so can anyone who aided or abetted the felon before or during the crime and anyone who became accessories to the crime after it was committed, such as those who help the felon avoid capture.
Felony, misdemeanor and simple offences have been defined by s.3 of the Criminal Code. It provides that:
A felony is an offence which is declared by the law to be so and has punishment, without proof of previous conviction, ranging from three years to the death penalty.
Misdemeanor offences are those that have been described by the law to be a misdemeanor and are punishable by imprisonment ranging from less than 3 years to more than 6 months. Example of misdemeanors are petty theft, prostitution, public intoxication, simple assault, trespass, reckless driver, possession of cannabis for personal use.
Simple offences are those offences other than felony and misdemeanor. They are often punished with an imprisonment of less than 6 months. E.g., Public nuisance, trespass.
LEGAL EFFECT OF CLASSIFICATION OF OFFENCES
The effect could be either procedural or substantive and it includes:
- Jurisdiction: Jurisdiction is the limit of a judicial authority or an extent or boundary to which a court of law can exercise its authority over cases, appeals etc. It is the authority granted to a court to hear cases and administer justice.
- Bail: Bail is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond. PART 19 of the Act makes general procedural provisions for bail while Sections 30 and 31 of the Act makes succinct provisions for procedures to be followed by the police in granting administrative bail to a suspect.
Bail usually arises in three instances in the criminal justice system thus:
a suspect may be granted bail by the police at the police station (administrative)
an accused may be granted bail by the court pending trial, and
a convict may be granted bail pending the determination of his appeal.
Section 158 of the Act provides for bail, while specific provisions for bail conditions are contained in Section 165. At the hearing of a bail application therefore, a grant or refusal is dependent on the facts, circumstances as well as the discretion of the court at the time of hearing the bail application.
Conditions for Grant of Bail
The right to bail is not automatic and is therefore not granted as a matter of course. While it is well established that bail can be granted in respect of almost all the offences known to law, certain conditions must be fulfilled before a person is admitted to bail. The Act only provides for the substantive principles and procedure to be followed in granting bail in court and by the Police leaving out the various conditions precedent to be considered before bail is granted. The Act specifically leaves these conditions to the discretion of the particular Judge or Magistrate. The conditions can however be found in plethora of judicial decisions, some of the conditions that have been applied by the court in granting and/or refusing an application for bail over the years are:
bail will be refused where the accused is likely to jump bail
bail will be refused where the accused is likely to repeat the offence for which he is charged if released on bail
where the accused has a criminal record in respect of the same or similar offence
the nature of the offence, the character of the evidence, and the possibility of suppressing vital evidence while on bail
the prevalence of the offence
availability of sureties that can meet the conditions of bail.
- Compounding of felony: This is an old common law principle, it is the decision by a victim of a crime to not prosecute the crime by refusing to cooperate with the police or prosecuting attorney or to hamper the prosecution, in exchange for money payment or other recompense. Compounding is a crime. This was treated as a misdemeanor during the old English law but now has been abolished and replaced with statutory Offenses.
Morality- rules of right conduct concerning matters of greater importance. Violations of such can bring disturbance to individual conscience and social sanctions.
Law- rules which are enforced by society. Violations may bring a loss of or reduction in freedom and possession
That a thing is immoral does not make it illegal and just because something is illegal it does not make it immoral.
Things that are illegal but are thought to be moral (for many)!
Drinking under age.
Driving over the speed limit.
Cheating on a tax return.
People do not think of themselves or of others as being immoral for breaking these laws.
Things that are immoral (for many) but are not illegal.
Cheating on your spouse.
Breaking a promise to a friend.
Using abortion as a birth control measure.
people can not be arrested or punished with imprisonment or fines for doing these things.
The connection between law and morality is that in some way the law exists to promote morality, to preserve those conditions which make the moral life possible, and than to enable men to lead sober and industrious lives. The average man regards law as justice systematized, and justice itself as a somewhat chaotic mass of moral principles. On this view, the positive law is conceived of as a code of rules, corresponding to the code of moral laws, deriving its authority from the obligatory character of those moral laws, and being just or unjust according as it agrees with, or differs from them. This, like all other popular conceptions, is inadequate for scientific purposes, and the jurist, so for at least as he is also a scientist, is compelled to abandon it. For it is contradicted by the facts. positive laws do not rest upon moral laws and common notions of justice furnish no court of appeal from the decrees of the State. The average man confounds law and morality, and identifies the rules of law with the principles of abstract justice.
Morality is the recognition or distinction between good and bad. However, crime is what attracts punishment at the instance of the state. It is worthy to note here that not every immoral act is a crime and vice versa. However, historically, morals have always affected the content of crime. This is because in the olden days, cannon laws had a lot of influence on general laws.
Lord Denning once said, “criminals should be hated. ” While Sir Stephen FitzGerald was of the opinion that there is a healthy alliance between criminal law and morals.
However, Lord Devlin disagreed with this position stating that there is a distinction between private morality and public morality. To this, he asserts that once the morality is of public nature, criminal law should be used to control it.
Prof H. L. A Hart however disagrees with him by submitting that a prudent criminal law maker must consider three things in making the law:
- Does the action harm anyone?
- Is it enforceable?
Corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs. It is sometimes regarded as an aspect of criminal vicarious liability, as distinct from the situation in which the wording of a statutory offence specifically attaches liability to the corporation as the principal or joint principal with a human agent.
Because, at a public policy level, the growth and prosperity of society depends on the business community, governments recognize limits on the extent to which each permitted form of business entity can be held liable (including general and limited partnerships which may also have separate legal personalities). However, limitations on corporate liability can lead to profound injustices for individuals resulting from a limited ability to be properly compensated for wrongdoing.
Corporate liability in criminal law outlines the extent to which a corporation as a legal body can be made liable for the wrongdoings of the natural persons it employs.
The concept of corporate criminal liability is relatively a recent development in Nigerian criminal law. Generally, the law recognizes the independent legal personality or independent existence of a company, distinct from its members. This principle was derived from English company law as decided in the celebrated case of Salomon V. Salomon & co herein, the court decided that the indebtedness of the owner of an incorporated business concern cannot be treated as personal indebtedness of its owner even if he is rich enough to liquidate such debt. The converse is also true i.e., acquisitions or properties belonging to a company are not that of the owners personally and they cannot freely appropriate it. The company is therefore capable of enjoying rights and being subject to duties which are not the same as those enjoined or borne by its members.
Although, a company may have legal personality distinct from its members, it has no physical existence and can only act through the human agents in it. The theory of corporate legal personality thus raises a lot of problems in the field of criminal law and liability when or if it is strictly applied. Since a company is an abstract person, it is incapable of a state of mind which may have legal significance such as volition, will, knowledge, malice, intention, negligence or recklessness.
As aptly stated by Smith and Hogan, “since a corporation is creature of law, it can only do such acts as it is legally empowered to do so that any crime is necessarily ultravires and the corporation having neither body nor mind cannot perform the acts or form the intents which are prerequisite of criminal liability”.
In addition to this problem, the challenge of securing appearance in court of the abstract entity of a company and even where that is possible, how to impose particular criminal punishment like imprisonment or death on the corporation remains a problem. These facts without variation would have resulted in an inability to hold corporate bodies criminally liable, a very uncomfortable situation and one which the legislature could not have intended.
The major obstacle to the imposition of criminal liability or even prosecution of corporate bodies was the need to establish a degree of mens rea or guilty mind. As a company was not ordinarily human, it cannot have a mind and consequently, it could not be held criminally liable for true crimes i.e., offences which requires the presence of a mental element alongside the physical element for its proof. This obstacle was gradually surmounted by the court through the doctrine of lifting the veil in corporation. This means that where a wrong is imputed or attributed to a corporation. The courts were prepared to look behind the screen or the veil of the legal incorporation or corporate personality and see the responsible individuals to who can be attributed the acts or deeds or omissions of the Company. Where necessary, the courts viewed the act and torts of the human agents of the Company as those of the company itself and the company is held liable not basically for the acts of its agents but for what the law deemed to be its own acts.
Arguably however, it will lead to an absurdity to deem the act of every member or every agent of a Company as that of a Company itself. Lord Denning in H. L Bolton Eng. Co V. T. J Graham and sons Ltd stated that ” a company may in many ways be likened to a human body. It has a brain and nerve center which controls what he does. It also has hands which hold the tools and act in accordance with directions from the center. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what he does. The state of mind of these managers is the state of mind of the company and it is treated by the law as such”
In the famous case of Tesco Supermarkets Ltd v Natrass. It was perceived that this was a sign that a more liberal trend now prevailed concerning the criminal liability of employers and employees for the actions of others there was also no mention as to why the supermarket manager was not regarded as the directing mind of the corporation and thus not found liable. was said that the company may be criminally liable only for the acts of: “the board of directors, the managing director and perhaps other superior officers of a Company who carry out the functions of management and speak and acts as the company. ”
By necessary implication, if those persons who are responsible for the general management of the company delegates their duties to another, then the acts of that other will be the acts of the Company.
Following these principles, corporate organizations have been held criminally liable. In DPP V. Kent & Sussex contractors. A company was prosecuted for making use of a document with intent to deceive. In R V. ICR college Ltd, a company was convicted of conspiracy to defraud, an offence which requires mens rea as an essential ingredient
In Nigeria, there are very little if any express or direct provisions on corporate criminal liability. Notwithstanding this, it has long been recognized by the Nigerian courts that a corporation could be held criminally liable for making a statement which it knew to be false.
A couple of sections in the criminal code admittedly relates to criminal liability of officers of the company for acts done in relation to the running of their companies. The offences created in these sections are unfortunately restricted to financial fraud, false accounting or making false returns.
Furthermore, there is no known case in which Nigerian courts have attempted to spell out the principles of corporate criminal liability neither have they attempted to carefully delineate the category of officers of a Company that the law could regard as the company.
According to Kadish and Poulsen, the problem here involves the legal criteria for determining which of the actions of its employees and officials the corporation is to be held liable for. Where a company is small or closely knit and the decision-making powers are concentrated in the group of identifiable individuals or persons, it is fast to identify those in actual control of the affairs of the company. However, where the corporation is large and responsibility is spread amongst various units or departments, it may be more difficult to allocate or pinpoint the focal center of responsibility. The situation is made worse in cases of transnational or multinational corporation where decisions are frequently made outside the host country for implementation within it.
In addition to all these, other limitations in criminal liability of a corporation includes the fact that corporations not having mind or body can only be convicted of offences which are punishable with a fine but not with Imprisonment or death as in the case of homicide and secondly there are other offences which it is quite inconceivable that an official of a corporation should commit for on behalf or within the scope of his employment in the company e. g bigamy, rape, incest, perjury, kidnapping, murder.
The rationale for imposing criminal liability on a company is not farfetched considering the fact that traditionally, this may not be the case. Decades ago, there were fewer whose officers can always be changed directly for their acts and omissions. The companies could also incur civil liability. Nowadays however, there has been a serious increase in the number and size of modern-day corporations and the diversities of their businesses. This has led to increasing difficulty of precisely ascertaining the responsible employee or officer of the company. A change therefore became inevitable. In addition, criminal liability of corporate organizations became necessary to ensure that the natural persons in charge of corporations must be clearly controlled by statute to compel them to stay within the scope of the declared objects, purpose, or goal of a corporation.
Furthermore, corporate criminal liability arising from the acts or omissions of the officers of the company but attributed to the company itself is necessary to ensure that the officers take precautions and exercise due diligence to avoid the commission of any crime by the company they control. It is admitted that imposition of fines on companies for criminal act of their officers or the company itself right be insufficient as a punishment.
Fines may be easily borne by large corporations. They may therefore not be deterred by that punishment. This kind of punishment also might not convey a clear message that an offence is socially intolerable and may therefore not guarantee that the corporation may discipline itself. Alternative punishment therefore includes: Forced corporate dissolution, partial or complete takeover, forced merger or acquisition, withdrawal of operating license as might be applicable indefinitely or for a stated period of as well as disqualification from the ability to undertake certain businesses.
Although, many countries such as the Great Britain have laws and statutes in corporate criminal liability. It is not a common statute in Nigeria. There has been a corporate manslaughter bill that is yet to see the light of day in Nigeria but a state like Lagos State has existing laws on corporate criminal liability. With the level of social, political, economic and industrial developments in Nigeria and the participation of foreign investors and multinational corporations. It is pertinent and urgent that other states in Nigeria and the country as a whole should enact appropriate corporate criminal liability statute.
However, there are three major elements that must be proven to charge a corporate criminal liability.
- If the employee was acting within the scope of employment
- If the employee was acting with the purpose of the corporation benefitting
- If the act was implied to the corporation.
It has already been established that the nature of the business of a company is set out in the memorandum of association as objects and in clauses. It is a statement of the objectives or type of business for which the company is registered to carry on.
At common law, the ultra vires doctrine has two legs. The first is a prohibition of the company from carrying out acts beyond the scope of its stated objects. The second is the resultant effect of carrying out such unauthorized acts. When a company does an act which is beyond the objects set out in the memorandum, such act is said to be ultra vires, null and void. The position is not altered by the fact that the members approve of it.
The purpose of the ultra vires doctrine is two-fold: on the one hand, it enables the intending incorporator who contemplates the investment of his capital, to know within what field the capital is to be put to work. On the other hand, the rule also serves to protect those who deal with the company(investors, creditors, etc.), such that they know whether or not the contractual relations which they contemplate entering with the company, is one relating to a matter within its corporate objects. It may also be added that the ultra vires doctrine is aimed at protecting creditors by ensuring that the company’s funds to which they must look to for payment are not dissipated in authorized activities.
The locus classicus in stating this doctrine is the case of Ashbury Railway Carriage Company Ltd. v. Riche. In this case, the company’s object clauses stated that it was established to manufacture and sell railway carriages and other railway equipment, and to buy and sell timber and coal. The directors then bought a concession for constructing a railway in Belgium and entered into an agreement with financier, Riche, in constructing a railway line. Riche began work on the railway line but the company later repudiated the contract. Riche sued for breach of contract. The House of Lords held that the contract to finance the building of the railway was ultra vires and void, and could not even be ratified by unanimous assent of all the members. The company could have used the capital to make things for railways, but not to make railways themselves, the court held. Note that a distinction was however made between acts which are merely ultra vires the directors, that is, beyond their powers as delegated in the articles, and acts which are ultra vires the company itself. The former could be ratified but not the latter. This principle was affirmed by the Nigerian court in the landmark case of Continental Chemists Ltd v. Ifeakandu, where a company sponsored the training of a medical doctor abroad, with the contract that the doctor will serve the company for 5 years after the training. It was held that since establishment and running of hospitals was not within the objects for which the company was incorporated, the contract with the doctor was ultra vires the powers of the company, and so was void and could not be enforced.
At common law, the ultra vires doctrine was amenable to being used as both a shield and a sword. An outsider contracting with the company could at any time raise the issue of ultra vires as a sword to vitiate the contract and renege performance on its part. It was also became a shield for the company, where it is being sued for an obligation due under an ultra vires contract. The application of the doctrine under common law was haphazard and very unpredictable. It usually carried an element of unfairness particularly where the ultra vires contract has been partially or fully executed by either of the parties. The strictness of the ultra vires doctrine at common law was attributable to two things. One was that the objects of a company at that time were largely unalterable (could only be altered in very limited circumstances). The second thing was the doctrine of constructive notice (by this a company’s memo and articles were considered public documents for which every person having dealings with the company is presumed to have notice and knowledge of the contents of these documents). See the cases of Re Jon Beauforte (London) Ltd, as well as Re Lee Behrens case for a contextual analysis of the severity of the common law rule regarding ultra vires doctrine.
Evasion of the Ultra Vires Rule under common law
Without prejudice to the utility of the ultra vires doctrine as stated above, the doctrine sometimes worked hardship. For example, if someone had lent money to a company on an ultra vires contract, or where all the members had agreed that the company could gainfully undertake the transaction, it would be unfair to invoke the doctrine to the detriment of either party. Consequently, ways were sought to avoid the application of the doctrine. The courts started to depart from the strict construction of the ultra vires rule and allowed companies to carry on business transactions reasonably incidental to the objects of the company. In the case of Attorney General v. Great East Railway Co, it was held that the doctrine, strict as it is, should be applied liberally; that acts which can fairly be regarded as incidental to the specified objects will be treated as intra vires. Later the courts accepted widely stated objects as valid. See the case of Cotman v. Brougham, Bell Houses Ltd v. City Wall Properties Ltd.
ULTRA VIRES UNDER CAMA
The companies and Allied Matters Act reflects the growing criticism and dissatisfaction with the ultra vires principle and its effects at common law.
The Act as a first measure preserved the doctrine of ultra vires by declaring that a company shall neither carry out any business not authorized by its memorandum or exceed the powers set out in the memorandum or Act itself (pursuant to s. 39(1) of CAMA).
To the extent of the powers thus delineated in the memo, section 38(1) provides that the company shall have all the powers of a natural person of full capacity. However, s. 38(2) expressly prohibits political donations from the realm of intra vires acts.
To further buttress the existence of the doctrine under CAMA, section 39(2) provides that a breach of the rule may be asserted and relied upon by a shareholder, officer, creditor or the CAC in an action alleging that the affairs of the company is being carried on in a manner that is oppressive, unfairly prejudicial, unfairly discriminatory or in disregard of the interest of the member, officer or creditor. It must also be reiterated that any restriction on the powers of the company to carry out its objects contained in the memorandum of association shall have the contractual effect intended under section 41, and will be relied upon in proceedings between the company, its members, officers and creditors for the nonobservance of the ultra vires limitations.
Although, it is clear that the ultra vires doctrine is still alive through these sections, it must however be stated that CAMA liberalised the strictness of the doctrine that existed in common law. For this reason, s. 39 (3) provides that notwithstanding the provisions of subsection (1) of this section, no act of a company and no conveyance or transfer of property to or by a company shall be invalid by the reason of the fact that such act, conveyance or transfer was not done or made for the furtherance of any of the authorized business of the company or that the company was otherwise exceeding its objects or powers.
It is imperative to note in the light of these provisions that the doctrine of constructive notice with regard to third parties has been abolished by section 68 of CAMA which provides that a person shall not be deemed to have knowledge of the contents of a memo and articles of association of a company or of any other particulars, documents, or the contents of documents merely because such particulars or documents so registered by the Commission or referred to in any particulars or documents so registered or are available for inspection at an office of the company.
Note that the legal effect of s. 68 is to do away with the imputation of knowledge inherent in the constructive notice principle. The principle received judicial approval in the landmark case of Royal Brititsh Bank v. Turquand, where it was held that outsiders will always presume the regularity of internal affairs not otherwise delineated in the memorandum or articles of association. The rule of presumption heralded in Royal Brititsh Bank v. Turquand has been codified in section 69 of CAMA. The section provides that any person dealing with a company is entitled to presume:
- That the company’s memorandum and articles have been duly complied with;
- That persons named as officers or agents of the company have been duly appointed, and have the authority to exercise the powers and perform the duties customarily performed by such officer or agent;
- That the secretary or otherbofficer having authority to certify documents on behalf of the company has authority to warrant the genuineness or accuracy of the documents so certified;
- That a document has been properly sealed by the company if it bears what purports to be the signature of persons who can be assumed to be the directors and secretary of the company.
Note however that a person shall not be entitled to make such presumptions where the person has actual knowledge to the contrary, or if having regard to his position with or relationship to the company, he ought to have known the contrary. (this exception is contained in the proviso to section 69).
Corporate personality is the fact stated by the law that a company is recognized as a legal entity distinct from its members. This principle is provided for in section 37 CAMA 1990 now enshrined in section 42 CAMA 2020. A company with such personality is an independent legal existence separate from its shareholders, directors, officers and creators. This is famously known as the veil of incorporation.
Historically corporate personality was given to religious bodies but upon the advent of joint stock companies and acquisition of limited liability in 1862 it became necessary to concede corporate personality to commercial companies for the sake of commercial convenience.
As a result of corporate personality, a company has perpetual succession. It simply means the company is everlasting and will continue to do business until it is properly wound up. As a separate legal person, a company will not be affected by changes such as death, transfer of shares or resignation of any members but will continue to exist despite the number of times the changes of membership occur. Even if all the members die, it will not influence the privileges, immunities, estates and possessions of a company. A company being a legal person has an unlimited amount of debts. The company is fully responsible for the debts that will be incurred during the course of business. However, this principle does not apply to its members with a limited liability. In case the company is insolvent, members are not required to pay more than the initial amount invested on their shares or guarantee. Their liability is limited to the amount of shares they subscribe or any unpaid value on such shares. Therefore, creditors of the company cannot take any action against the members if the company went into liquidation as established in the landmark case of Salomon v. Salomon Co Ltd (1897)
Synopsis of the case (SALOMON V. SALOMON)
The appellant, Aron Salomon, for many years carried on business, on his own account as a leather merchant and wholesale boot manufacturer. He ran a sole proprietorship and wanted to convert it into a company. (Bear in mind that this was an 1897 case and as at that time, companies we had were joint stock companies.) He did this and incorporated the company along with his family members; his wife, his four sons and a daughter. At this point in time, for a company to be incorporated, the law required there must be a minimum of 7 shareholders, holding atleast one share each. Aron did this. Since Aron was the owner of the sole proprietorship, he sold the business to the company for £39,000. He was given £9000 in cash and 20,000 worth in shares. He automatically had 1 share previously, so adding the 20,000 shares equals Aron to have 21,000 shares. His balance was remaining £10,000 and this was given to him as debentures by way of floating charges and so Aron was paid up completely for selling the business.
A year into the business, the leather market had struggles due to strike and other things, this led them to borrow money because the business was struggling. They borrowed £5000 from a secured creditor, Edmund Broderip but also had to drop a form of collateral. The collateral was the £10000 pounds that was issued to Salomon as debentures. They later liquidated the company due to bad business, then unsecured creditors through a liquidator brought an action before the court. The liquidators asked the court to rescind the contract and remove the debentures that was already delivered and give a judgment against the appellant
The trial court per Vaughan J sided with the liquidators and held that since the appellant (Salomon) was the managing director, he was the one with the company and as such he should indemnify the company’s debt and a lien should be given on the sum of the money paid to the appellant by the company. Salomon then appealed
The Court of Appeal was of the opinion that the formation of the company, the agreement to transfer Salomon’s business to the company and the issue of the debentures to Salomon were all a mere scheme to enable him carry on his business in the name of the company I.e it’s because he wanted to still carry on his sole proprietorship business but under the guise of a company, that’s why he converted. They further held that everything Salomon did had the bearings of a fraudulent scheme
On the other hand, the House of Lords per Lords Halsbury, Herchell, Macnaughten, Morris and Davey disagreed with the decision of the court of appeal. According to them, the requirement under the company’s act which stated that there must be a minimum of 7 shareholders holding atleast 1 share each was followed and as such, the company was validly created and thus had corporate and legal personality under the law, therefore Salomon was not the same with the company. The House of Lords further held that Salomon should not indemnify the company.
The decision in Salomon v. Salomon is the locus classicus in elucidating the corporate personality principle. The case recognized that the corporate form is essentially an abstract legal body, created by law for the purpose of commerce. It consequently did not matter that an indivisible substantially held all its shares alone as seen in Lee v. Lee’s Air Farming. Neither did it matter that he performed most of the key roles in the company. From the date of registration of a company, it acquired corporate personality separate and distinct from its members. Since the company and owners of the company are separate entities, members of the company aren’t personally liable for the debts of the company and vice versa. The liability of the company therefore differs from that of the owners. In Macaura v. Northern Assurance, Macaura was the sole founder, shareholder and unsued creditor of a company which owned a large quantity of timber stores on Macaura’s land. He insured the timber in his own name and two weeks later, it was destroyed by fire. The court held that the insurers were not liable to pay Macaura since the timber didn’t belong to him but rather to the company, a separate legal entity. It is important to note that in exercising its functions and powers, it is not a trustee or a gent for its members, unless special circumstance creating a trust or agency are created. Even the subsidiaries in the face of full control are not regarded as agents of the company. In Adams v. Cape, It was held that that a holding company and its subsidiary are distinct and separate legal personalities.
The other principle of corporate personality is demonstrated in the case of Foss v. Harbottle (1843). A company may sue or be sued in its own name. The company must take the initiative to sue the other party by using its own name or handle any possibilities of criminal complaint that might be filed against it. For instance, John as a director cannot take an action against one of his employee for money laundering. It is the company’s position to sue the employee for the wrongdoing.
The corporate personality principle has also been applied in some Nigerian cases. In Kate Enterprises v. Daewoo Nigeria Ltd , it was held that upon incorporation, a company becomes a body corporate capable of exercising all functions of an incorporated company. Also in Dunlop Nigeria Industries v. Forward Nigeria Enterprises, it was held that it doesn’t matter if the company shares are owned substantially by one of the shareholders, Act by which a limited liability company is incorporated isn’t concerned with quantum of interest of its members, such company maintains its independent existence as a person distinct from any of it’s members. Corporate personality principle was also upheld in Intercontractors Nig v. NPF Management Board
In conclusion, it is important for companies to have corporate personalities so as to distinguish and separate the activities and liabilities of a Company from that of its shareholders and for such company to sue and be sued in its own name. This doctrine acts a shield for members of a company as it protects them on a personal level from third parties but can also have a boomerang effect on the members of the company.
Generally, the principle of legality is a universal principle. It is a standard of compliance in terms of penal statute. The principle of legality is the standard by which laws are measured to see if it is in line with universal penal statute. It is a necessity for civilized world in the procedural system of criminal law.
It should be noted that the concept of rule of law in criminal law is to ensure that when punishment is meted out, they must meet certain requirement. Some of this requirement includes the following:
-Presumption of innocence as contained in Section 36(5) “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
-Provision of Article 11(1)(2) of the UDHR: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.”
(2)” No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”
-Provision of section 36(8) of the 1999 constitution. “No person shall be held to be guilty of a criminal offense on account of any act or omission that did not at the time it took place, constitute such an offense, and no penalty shall be imposed for any criminal offense heavier than the penalty in force at the time the offense was committed.”
-Provision of section 36(12) of the 1999 constitution: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offense unless that offense is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a state, any subsidiary legislation or instrument under the provisions of the law can exercise its authority over.”
The principle binds all the arms of government and all agents of the state. It should be noted that when a conduct is not a crime, it offends the principle of legality to make it a crime.
In Nigeria context, the military have had no respect for principle of legality in Nigeria by making retroactive laws. Therefore, assessing principle of legality in a military regime is zero. However, in civilian regime, there is believe in due process and principle of legality works more. Although in application, there has been problems with the application in effect especially in Nigeria. However, to ensure that the principle of legality is more respected, the legislature has to make laws that are respected and not retroactive laws. Also, attitude of jungle justice is not helpful for the principle of legality in Nigeria and so should be totally avoided.
Similarly, the usage of public outcry to arrest people is against the principle of legality and must be avoided too. This means that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege which means, No crime without punishment). It also embodies, that the criminal law must not be extensively interpreted to an accused’s detriment, for instance by analogy. According to that principle, an offence must be clearly defined in the law. The concept of law comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability. The requirements are satisfied where the individual can now from the wording of the relevant provision and, if need be, with the assistance of court interpretation of it, what acts and omissions will make him criminally liable. The principle of legality also includes the rule which prohibit the retrospective application of the criminal law to an accused disadvantage. That principle is enshrined in the constitutions of many countries as well as in the most important international convention that protects human rights.
The principle of legality is that a person cannot be charged with a crime if it does not constitute a criminal offense when the crime was being committed. Also, the person cannot be imposed a heavier penalty if it was imposed after the crime was committed.
The principle of legality implies that the jury cannot issue a verdict against a person if the action was not prohibited when the crime was committed. Also, it disallows a judge to lean in favor of any verdict that has been given without any reasonable or clear justification.
The five major principles of Law are: principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers. Etc
Which means guilty acts. This is the physical element of a crime. Actus reus refers to the act or omission that comprise the physical elements of a crime as required by statute.
The actus reus includes only voluntary bodily movements, particularly one which society has an interest in preventing. Thus, if a defendant acted on reflex, then the defendant’s conduct does not satisfy the actus reus requirement. Contrast this with mens rea, which refers to the criminal intent element of a crime. It is the physical act of a crime. It is the act or omission to act. Also, Actus reus may be voluntary. See the case of Fagan V. Metropolitan commissioner.
Generally, Actus reus is an act. However, it could also be an omission to act.
Also, omission can be given several classifications like:
– Breach of duty to act
– Commission of omission
– Duty arising from assumption of care for others
– Duty arising from dangerous situation
Also, omission could be done by causation.
This connotes the cause of a crime. There is legal causation and factual causation
-Factual Causation: Arises as a result of the conduct of a person
-Legal Causation: The result is caused by a culpable act
Alternately, the actus reus requirement can also be satisfied by an omission. This is true only when the individual had a duty to act, and failed to act.
Generally, for the purposes of criminal liability, an individual may be under a duty to act if:
- A statute requires a person to act in a certain way.
- A contract requires a person to act in a certain way.
- Some special status relationship exists that creates a duty to act in a certain way (i.e., parental responsibilities).
- A voluntary assumption of care creates a duty to act in a certain way.
- The individual created the risk.
Mens rea which means “guilty mind” is the mental element of a person’s intention to commit a crime; or knowledge that one’s action or lack of action would cause a crime to be committed. It is a necessary element of many crimes. It is the mens rea and actus reus that make up a crime.
The standard common law test of criminal liability is expressed in the Latin phrase actus reus non facit reum nisi mens sit rea, i.e., “the act is not culpable unless the mind is guilty”. As a general rule, someone who acted without mental fault is not liable in criminal law. Exceptions are known as strict liability crimes.
ELEMENTS OF MENS REA
- Purpose: A person acts purposefully (intentionally) if he acts with the intent that his action causes a certain result. In other words, the defendant undertakes his action either intending for, or hoping that, a certain result will follow.
- Knowledge: A person acts knowingly if he is aware that his conduct will result in certain consequences. In other words, a person acts knowingly if he is aware that it is practically certain that his conduct will cause a specific result.
- Recklessness: A person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions. The risk must be substantial enough that the action represents a gross deviation from what a reasonable law-abiding person would do
- Negligence: A person acts negligently if they should have been aware of a substantial and unjustifiable risk that a certain consequence would result from their actions. Although the level of risk is the same for both recklessness and negligence, the difference between the two is that with recklessness, the actor must be aware of the risk involved with her actions, whereas, for negligence, the actor is not aware of the risks but should have known what those risks were
Strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action. In criminal law, possession crimes and statutory rape are both examples of strict liability offenses.
For example, A person in possession of drugs will result in criminal liability, regardless of whether the defendant knows that he is in possession of the drugs.
Strict liability offences don’t need mens rea to be proved. Strict liability offences most times are exemplified in disobedience to traffic rules.
Also, it should be noted that there is no liability without a fault. Hence, for one to be faulty, there has to be the combination of mens rea and Actus Reus.
An act is done in a state of automatism if it is done by the body without control by the mind (e.g., it is a spasm or a reflex) or if it is done by a person who is not conscious of what they are doing. To claim a defense of automatism the defendant has to have a total loss of control over their actions, meaning they cannot be held liable for those actions because their conduct lacks the basic requirement of being voluntary.
There must be a total destruction of voluntary control on the defendant’s part. If the defendant retains impaired, reduced or partial control, the defense is not available.
The defense of automatism is limited in the following circumstance;
- where automatism is caused by a disease of the mind
- where automatism is caused by self-induced intoxication
- where automatism is caused by a self-induced incapacity, other than intoxication due to drink or drugs, (e.g., a failure to eat while taking insulin), or
- where there is only a partial destruction of voluntary control on the defendant’s part
Intoxication may be voluntary or involuntary and may be brought about by drink or drugs.
Intoxication has the potential to remove the necessary mental element required for a defendant to commit an offence. It is not a defense as such.
Intoxication can be divided into two categories:
- Voluntary intoxication—the defendant got themselves intoxicated
- Involuntary intoxication (e.g., where a defendant’s drink has been spiked)—the defendant was not responsible for becoming intoxicated
The distinction between the two types of intoxication is important when considering whether the offence the defendant is alleged to have committed is one of specific or basic intent. Involuntarily intoxication can be raised in answer to a charge of both specific and basic intent. Voluntary intoxication can only be raised to answer a charge to an offence of specific intent, e.g., murder or theft—voluntary intoxication may be sufficient to show that the accused could not have formed the requisite intent to commit the offence. Voluntary intoxication in order to commit a crime provides no defense.
To raise the defense of mistake is to deny the mens rea of the particular crime charged. The defense of mistake requires the accused to have made a mistake about the circumstances or consequences of an act which nullifies a suggestion of criminal intention. A mistake about the law will generally be no defense, save where knowledge of the legal state was relevant to the requisite intent. Mistake of fact is more commonly relied on as a defense.
The test is whether the accused’s belief was an honest and genuine one (subjective). It is not relevant whether the accused’s mistaken belief was reasonable. This is different where the required state of mind is negligence, in which case, reasonableness will be a factor because an unreasonable mistake would be proof of the negligence which is the basis of liability.
Mistake provides no defense to strict liability offences. In cases where the criminal intention is subjective recklessness, then the mistake will also be considered subjectively.
Insanity is a complete defense even to strict liability offences. To establish a defense of insanity it must be clearly proved that, at the time of commission of the act in question, the accused was laboring under a such a defect of reason, from a disease of the mind as not to know the nature and the quality of the act they were doing, or, if they did know it, they did not know it was wrong. Where a person wishes to raise insanity as a defense the burden of proof (on the balance of probabilities) rests with the defendant.
In the Crown Court, a jury may return a ‘special verdict’ of ‘not guilty by reason of insanity’. This is provided for in the section 2 of the Trial of Lunatics Act 1883. For a special verdict to be returned, the prosecution must prove that the accused did the act or made the omission charged. A special verdict is inapplicable to trial in magistrates’ courts. Thus, a defense of insanity would lead to a completely acquittal in the magistrates’ court although the defendant may not necessarily be released but may instead be detained on mental health grounds.
DURESS AND NECESSITY
Duress by threats provides a complete defense to a charge of any offence other than murder, attempted murder or (potentially) treason. The defense arises where the defendant commits the offence with the relevant intention but is induced to act by a threat made by another person, or where the defendant reasonably believes such a threat has been made, to the effect that, unless the defendant commits the offence with which they are charged, they or a third person will be harmed. The evidence for a defense of duress must be raised by the defendant. The burden is then on the prosecution to disprove the assertion.
The court will consider the reasonableness of the defendant’s reaction in the context of the prevailing circumstances. It will consider whether the response was proportionate.
Necessity differs from duress in that it is not an excuse, but as a choice between two evils which provides justification for the offence. The defense of necessity is available only in very narrow circumstances.
Self-defense is an absolute defense which can apply to offences committed by force. Self-defense as a defense can take the form of defense of a person or property, the prevention of crime and the lawful arrest and apprehension of offenders.
The defense will be available to a person if they honestly believed it was necessary to use force and if the degree of force used was not disproportionate in the circumstances as the person viewed them. In determining what force is reasonable, the physical characteristics of the defendant might be relevant.
When raised by the defense, it is for the prosecution to rebut a defense of self-defense to the criminal standard of proof. The factors which it may rely on include:
- Use of excessive force
- The consequences of the action taken, particularly where the result was death or serious injury
- The use of a weapon in applying force, and premeditated violence e.g., going armed to exact revenge.
PUNISHMENT AND ITS ALTERNATIVES
Punishment is a distinguishing mark of crimes. Under the law, there are different kinds of recognized punishment which includes:
- Imposition of monetary fine
- Asset forfeiture
- Restraining order
- Death sentence
However, Section 36(12) and Section 34 of the constitution of the FRN must be taken into consideration when punishing one for a crime. Although, it must be noted that punishment must confer suffering or pain on the offender.
GOALS/OBJECTIVES OF PUNISHMENT
- Doctrine of Retribution: This serves as vengeance or repercussion against a criminal. However, this concept has been condemned mainly on the fact that it has no goal than the retaliatory process. It is also believed that civilization ought to have lifted every society out of this process as it is considered backward and retrogressive.
- Deterrence: To deter people from committing crimes. It is believed here that this process will discourage people from committing crimes because of the pain that comes with its punishment. This method has been criticized in the following ways:
-The idea does not work because there are repeat offenders
-If deterrence works, all crimes that are usually punished most severely should have been deterred
-Deterrence only works for calculative crimes not a crime for passion
-It is immoral to use punishment as a means to help others learn.
- Incapacitation: This entails punishing in order not to commit the crime again. The criticism to this is:
-It doesn’t give room for people to change
-It is a concept that nearly totally disregards the causes of committing a crime
- Rehabilitation: The goal of punishment here is to teach people morals, to drive them to change their ways as to become a better person.
For every crime, there are punishments accrued to them which comes in various forms
Some Alternatives to Punishment include; Probation, Rehabilitation, Community service.
GENERAL PRINCIPLES OF SENTENCING
Sentencing principles have developed through legislation and court decisions (common law). They form the basis of sentencing decisions. These principles include:
Parsimony – the sentence must be no more severe than is necessary to meet the purposes of sentencing. It is a traditional idea in criminal justice that is relevant to debates about appropriate use of imprisonment. It holds that punishment that is more severe than is actually required is morally wrong.
Proportionality – the overall punishment must be proportionate to the gravity of the offending behavior. It is one of the main goals of sentencing. It simply posits that punishment should equal the crime. Certain crimes in proposition to the severity of the crime.
Parity – similar sentences should be imposed for similar offences committed by offenders in similar circumstances. It is the principle that offenders participating in the same offenses should incur similar sentences. It is best quoted as “Similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
Totality – where an offender is to serve more than one sentence, the overall sentence must be just and appropriate in light of the overall offending behavior.
The principle of totality comprises two elements:
- All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behavior before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence.
- It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behavior, together with the factors personal to the offender as a whole.
Parties to an offence is when two or more parties form a common intention to carry out a criminal act. The degree of their participation might vary but the law would hold them jointly and severally liable for the commission of the crime. The law regards all of them as partners in the crime. Under the Nigerian law, parties to an offence are divided into two categories which are:
- Principal offenders as contained in section 7 of the Criminal code
- Accessories after the fact as contained in section 10 of the Criminal code
This is the person who commits the actual offence. According to Binns the principal offender is the one who stabs the victim in the wounding offence, penetrates the non-consenting victim in the rape offence, damages a person’s property in the case of criminal damage or causes death of the victim in the offence of homicide. Thus, a principal offender is the person whose act is the immediate cause of the physical injury suffered by the victim.
Section 7 of the Criminal code is divided into four subsections which defines category of principal offenders. They are;
7a: “Every person who actually does the act or makes the omission which constitutes the offence”
7b: “Every person who does or omits to do any act for the purpose of enabling or aiding another
person to commit the offence”
7c: “Every person who aids another person in committing the offence”
d: “Any person who counsels or procures any other person to commit the offence.”
To establish the Mens rea of Section 7 of Criminal code Act, it must be read alongside with Section 24 of the Criminal code Act, which states; “ Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident. , Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”
Therefore, the law does not intend Section 7 to be a strict liability offence.
ACCESSORIES AFTER THE FACT
This is contained in section 10 of the Criminal code act.
- Accessories after the fact
A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence. A wife does not become an accessory after the fact to an offence of which her husband is guilty by receiving or assisting him in order to enable him to escape punishment; nor by receiving or assisting, in her husband’s presence and by his authority, another person who is guilty of an offence in the commission of which her husband has taken part, in order to enable that other person to escape punishment; nor does a husband become accessory after the fact to an offence of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment.
In this section the terms “wife” and “husband” mean respectively the wife and husband of a Christian marriage. This entails rendering assistance after the commission of a crime. Assistance here must be either to facilitate escape or help an accused person to escape punishment. It is worthy to note that unlike section 7, section 10 has mens rea denoting term.
Under the Criminal Code, the mental element required for the offence of being an accessory after the fact is knowledge of the guilt of the person assisted plus an intention to facilitate his escape from punishment. The phrase “to his knowledge guilty of an offence” will presumably have to be given a loose definition, for on a strict interpretation of guilty, there may be the necessity of allowing that the person assisted had already been convicted. This will be contrary to the intention of the draftsman and especially so where a separate offence of “harboring escaped prisoners have been provided for in the Criminal Code.28Under the Penal Code, where the act involves causing any evidence of the commission of the offence to disappear, the mental elements are:
- knowing or having reason to believe that an offence has been committed;
- intention of screening the offender from legal punishment.
Where the act involves the giving of false information, the mental elements are:
- knowing or having reason to believe that an offence has been committed;
- knowing or having reason to believe that the information given in
respect of the offence is false;
iii. intention of preventing the arrest of the offender or to screen the
offender from legal punishment.
Where the act consists of harboring or concealing an offender, the mental elements
- knowing or having reason to believe that offence has been committed;
- knowing or having reason to believe that the person harbored or
concealed is the offender;
iii. intention of preventing the arrest of the offender or to screen the
offender from legal punishment.
The requirement that the accused must have “known or had cause to believe” envisages actual knowledge. Where the question is whether the accused “had cause to believe” presupposes that no one can be said to have reason to believe a thing unless he has sufficient cause to believe that thing. In Nathu v. State of Uttah Predesh, it was held by the Supreme Court of India that;
“before a conviction under section 201 of the India Penal Code can be recorded, it must be shown to the satisfaction of the court that the accused knew or had reason to believe that an offence has been committed and having got this knowledge, tried to screen the offender by doing an overt act.”
As to the giving of false information regarding an offence, if the accused knew or had cause to believe that an offence had been committed, and yet gave false information regarding that offence, it will be easy to conclude that he knew or had cause to believe that the information he gave in respect of the offence was false. With regard to knowing or having cause to believe that a person harbored is the offender, it may be said that if such knowledge or belief were not a requirement, then a person may be convicted for merely extending his hospitality to someone in distress.
In cases of harboring, whether an accused can be held to “have cause to believe” must depend on the facts, since the circumstance which will be held sufficient to put a man on enquiry must necessarily vary from case to case. The underlying intention in all these situations must be to screen the offender from legal punishment. Actual intention must be proved as the mere likelihood of the act of the accused having that effect is not enough. What makes the crime imputable, is the hindrance of public justice by assisting the offender to escape the vengeance of the law. Therefore, where the accused for example, harbors a man, not with the intention of screening him from punishment, but rather to prevent his escape, he cannot be guilty of harboring him. On intent, it is clear that nothing short of positive intention suffices. It is not enough that the accused realizes that what he is doing will have the effect of impeding the arrest or prosecution of the principal offender, this must be his motive in doing the act.
Homicide is the killing of a person by another person in circumstances that were not justified, authorized or excused by law. Homicide is the act of one human killing another. homicide requires only a volitional act by another person that results in death, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no intent to cause harm. Section 306 of the Criminal code act makes provision for this. “It is unlawful to kill any person unless such killing is authorized or justified or excused by law.” The purpose here is to follow through whether someone who has killed another has done it justifiably, by authorization or excusably.
It is also worthy to note that Section 315 of the Criminal code criminalizes killing of another.
“Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.”
Section 307 states the category of person that can be killed It is unlawful to kill any person unless such killing is authorized or justified or excused by law.
- “When a child becomes a human being. A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel‐string is severed or not”
It is also worthy to note that there are two key issues in homicide which are;
1.Unlawfulness: referring to any action which is in violation of a statute, federal or state constitution, or established legal precedents (against the law).
Section 308 of Criminal code defines killing “Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person”. while section 310 sheds more light on Causing death by threats
“A person who, by threat or intimidation or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him.”
See the case of R v. Roberts.
“young woman aged 21 accepted a lift from the defendant at a party to take her to another party. She had not met the man before and it was 3.00 am. The defendant drove in a different direction to where he told her he was taking her and then stopped in a remote place and started making sexual advances towards her. She refused his advances and he drove off at speed. He then started making further advances whilst driving and she jumped out of the moving car to escape him. She suffered from concussion and cuts and bruises. The defendant was convicted of actual bodily harm under s.47 of the Offences Against the Person Act 1861. He appealed contending that he did not intend or foresee a risk of her suffering actual bodily harm from his actions and that he did not foresee the possibility of her jumping out of the car and therefore her actions amounted to a Novus actus interveniens.
There is no need to establish an intention or recklessness as to the level of force under s.47. It is sufficient to establish that the defendant had intention or was reckless as to the assault or battery.
Where the victim’s actions were a natural result of the defendant’s actions it matters not whether the defendant could foresee the result. Only where the victim’s actions were so daft or unexpected that no reasonable man could have expected it would there be a break in the chain of causation.”
It is also worthy to note that the law does not recognize the use of witchcraft or juju. However, anyone who threatens or uses juju or witchcraft to cause the death of another will be punished by virtue of section 212 Criminal code. “212. Destruction of place where unlawful ordeal or prohibited juju worship is held. Any house, grove or place in which it has been customary to hold any trial by ordeal which is unlawful, or the worship or invocation of any juju which is prohibited by an order, may, together with all articles found therein, be destroyed or erased upon the order of any court by such persons as the court may direct.”
Section 213 criminalizes charms.
Any person who‐
(a) makes, sells or keeps for sale or for hire or reward, any fetish or charm which is pretended or reputed to possess power to protect burglars, robbers, thieves or other malefactors, or to aid or assist in any way in the perpetration of any burglary, housebreaking, robbery or theft, or in the perpetration of any offence whatsoever, or to prevent, hinder or delay the detection of or conviction for any offence whatsoever; or
(b) is found having in his possession without lawful and reasonable excuse (the proof of which excuse shall lie on such person) any such fetish or charm as aforesaid,”
Here, the court always considers whether injury caused on a person is the underlying cause of the death of a person. See the case of R v. Smith. “The defendant was a soldier who stabbed one of his comrades during a fight in an army barracks. The victim was taken to receive medical attention, but whilst being carried to the hospital was dropped twice by those carrying him. Once at the hospital, he received negligent medical treatment; the medics failed to diagnose a puncture to his lung. The victim died of his injuries, and the defendant was charged with murder and convicted at first instance. The defendant appealed on the basis that the victim would have survived but for the negligence of those treating him. He also argued that his confession had been obtained under duress and was therefore inadmissible.
The issue was whether the negligence on the part of the doctors was capable of breaking the chain of causation between the defendant’s action in stabbing the victim, and his ultimate death.
The court held that the stab wound was an operating cause of the victim’s death; it did not matter that it was not the sole cause. In order to break the chain of causation, an event must be:
“…unwarrantable, a new cause which disturbs the sequence of events [and] can be described as either unreasonable or extraneous or extrinsic”
The chain of causation was not broken on the facts of this case. With respect to the issue of duress, the court held that as the threat was made some time before the relevant confession and was no longer active at the time of the defendant’s statement, it did not render the evidence inadmissible. The conviction for murder was therefore upheld.”
Also, it is important to take the victim the way he is as it is not an excuse to plead that the victim did not take care of his/herself. See section 312 of criminal code. “When a person causes bodily injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person injured, or that his death from that injury might have been prevented by proper care or treatment.”
see also R v. Blaue  1 WLR 1411 Court of Appeal
The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practicing Jehovah’s witness and refused to have a blood transfusion which would have saved her life. The defendant was convicted of manslaughter on the grounds of diminished responsibility and appealed arguing that the girl’s refusal to accept the blood transfusion was a Novus actus interveniens breaking the chain of causation, alternatively that Holland was no longer good law.
The defendant’s conviction was upheld. The wound was still an operative cause of death (following R v Smith & R v Jordan) so no Novus actus interveniens and Holland was still good law.” However, this situation is different from situation where there is an injury but other factors came in that are radically different from the injury caused. See R v. Jordan. “R v Jordan (1956) 40 Cr App E 152
The defendant stabbed the victim. The victim was taken to hospital where he was given anti-biotics after showing an allergic reaction to them. He was also given excessive amounts of intravenous liquids. He died of pneumonia 8 days after admission to hospital. At the time of death his wounds were starting to heal.
The victim died of the medical treatment and not the stab wound. The defendant was not liable for his death.” There is need to see the causative link between the act of the accused and the death of the victim.
See the case of R v. White. “The defendant put poison into the evening drink of the victim, his mother, with the intention of killing her. The victim drank a few sips of the drink and then fell asleep. She did not wake up; however, the medical evidence was that she had died of a heart attack rather than as a result of the poison. The defendant also gave evidence that he had not intended to kill her by a single dose but had planned to deliver multiple doses over a longer period of time. The defendant was convicted of attempted murder.
On appeal, the question arose as to whether the defendant could be liable for murder given that his actions had not factually caused the death. A second issue was whether having delivered a single dose was a sufficient ‘attempt’ to ground the conviction in light of the evidence that the defendant had intended the victim to die as a result of later doses which were never administered.
The court established the ‘but for’ test of causation, according to which the defendant could not be convicted unless it could be shown that ‘but for’ his actions the victim would not have died. On the facts of this case the test was not met, therefore the defendant could not be convicted of murder.
On the issue of attempt, the court held that it was sufficient that the attempted murder had been begun, notwithstanding that the defendant had not completed his plan. The conviction for attempted murder was therefore upheld.”
It is worthy to note that killing a person is unlawful except it is authorized, justified or excused by law. Section 254 of the criminal code Act states that:
“It is lawful for a person who is charged by law with the duty of executing or giving effect to the lawful sentence of a court (including a Customary and an Area Court) to execute or give effect to that sentence.”
Also, in times of insurrection, riot or mutiny and there is a command by a lawful authority, the killing is justified. Similarly, by virtue section 286 the defense of self-defense is justifiable in law.
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defense against the assault: Provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm. If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defense believes, on reasonable ground, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defense, even though such force may cause death or grievous harm.”
Section 306 of the criminal code makes killing unlawful. “It is unlawful to kill any person unless such killing is authorized or justified or excused by law.”
Also, section 315 provides that:
“Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.”
Moving further, section 316 of the criminal code highlights instances where killing of another is unlawful.
“316. Definition of murder
Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say‐
(1) if the offender intends to cause the death of the person killed, or that of some other person;
(2) if the offender intends to do to the person killed or to some other person some grievous harm;
(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which
act is of such a nature as to be likely to endanger human life;
(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the
commission of an offence which is such that the offender may be arrested without warrant, or for the
purpose of facilitating the flight of an offender who has committed or attempted to commit any such
(5) if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
(6) if death is caused by willfully stopping the breath of any person for either of such purposes, is guilty of murder. In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed. In the third case it is immaterial that the offender did not intend to hurt any person. And in the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result. “
This is a circumstance where homicide may be justified. The defense of provocation turns the offence of murder to manslaughter because there is generally no intention to kill. See section 318 of criminal code.
As Lord Deblin puts it,
“provocation is some act or series of act done by the dead man to the accused which would cause fear in any reasonable person and actually cause in the accused a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
See section 283 and 284 of criminal code.
“The term “provocation”, used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act or insult of such nature as to be likely, when done to an ordinary person, or in the presence of the ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self‐control, and to induce him to assault the person by whom the act or insult is done or offered When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.”
A lawful act is not provocation to any person for an assault. An act which a person does in consequence of excitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that person for an assault.
An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.
- Defense of provocation
“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 acts 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. Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self‐control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self‐control, and whether any force used is or is not disproportionate to the provocation, are questions of fact. “
It is worthy to note that Manslaughter can be voluntary or involuntary.
To rely on the defense of provocation, the following must be proved:
- The provocation must be such as would make a reasonable man lose his power of self-control.
See R v. Adekanmi. Wife telling her illiterate and primitive husband that he was impotent and for that reason, he has been committing acts of adultery with other men,
- The act causing death must be done in the heat of passion caused by grave and sudden provocation and before the passion cools down. See the case of R.V. Green, (1955) WACA the
wife of the accused who was having some issues with the accused left him and started living with her mother. The accused visited severally to try to persuade her to come back. During one of such visits, he caught the wife and another man having sexual intercourse. This was around 9 pm on the fateful date. He left to brood over his misfortune. At around 1am he returned with a matchet and killed the wife and the mother-in-law. At his trial for murder, he pleaded provocation, but the court refused him the defense because of the time lapse from when he saw them having the intercourse and when he came to perform the act of murder.
3.The provocation must be such to cause a reasonable man to lose control of himself. The act causing death must be done in the heat of passion caused by sudden provocation and before there is time for passion to cool. Also, provocation by one person is no excuse for killing another person in fact did not offer any provocation. the case of R. V. Ebok (1950) 19 NLR 85
“The accused was provoked by his estranged wife who was in company of other women. He killed the estranged wife and went ahead and killed one of the women with her. The court held that the second woman did not give him any provocation and as such it as murder. The mode of resentment must also be proportionate to the provocation.
- Where someone alleges that he/she has been provoked, it is required that the mode of his resentment be proportionate to the provoking act. See R v. Adelodun
This doctrine is covered by Section 8 of the Criminal Code which provides that:
“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
This implies that a person may be liable for a crime that is not intended but happened while setting out to commit another crime. However, the unintended crime must be a probable consequence of the original act they set out to commit. Probable consequence here means that it is a foreseeable consequence of the original crime they set out to commit.
ELEMENT OF COMMON PURPOSE DOCTRINE
- A common intention to prosecute an unlawful purpose.
- They must be doing that common intention in conjunction with one another.
- In conjunction with one another: Here, the common intention must show that they intended to act jointly and not separately.
- And in prosecution of such purpose; The action must be within the scope of what they have agreed to do
- An offence is committed
These offences are regarded as incomplete or preliminary offences. These offences are usually incomplete in terms of the actus reus. For inchoate offence, the intention is usually same as the failed offence. The point of divergence however is the actus reus.
Two types of inchoate offence are:
- Law of attempt. See section 4 of criminal code
“4. Attempts to commit offences When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence. It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
The same facts may constitute one offence and an attempt to commit another offence.
- Conspiracy: A conspiracy is an agreement between two or more people to commit a crime at a future date. There is often no limit on the number participating in the conspiracy and in some countries, no requirements that any steps have been taken to put the plan to effect. Unlike attempt which requires which requires proximity to the complete offense.
Some of the test formulated in case of attempt are:
- The Proximity test: This states that it is only actions that is proximate to the offence that can be regarded as an offence.
- The Equivocality test: This is also known as “The Screen Test”. The principle behind this test is that the scenario of the crime has to be played on the screen for people to actually watch. Whatever the majority says is what the attempt will be regarded as
- Last Act/ Last step test: e.g., positioning or pointing a gun at a person with intent to kill. See R v. Bolton: The accused was exercising access to his 8-year-old son, when his ex-wife came upon the accused and the son sitting in the accused’s vehicle outside a convenience store late at night. The wife objected to the child being out too late and opened the passenger door of the vehicle and attempted to remove the child. The accused tried to restrain his ex-wife and during the ensuing struggle, she alleged that she was struck in the face. The accused was charged with common assault. At his trial in Provincial Court the accused alleged that the blow to his ex-wife was accidental and, in the alternative, argued that it was a reasonable use of force under S.27 of the Criminal Code to prevent her from abducting the child contrary to S.282 of the Criminal Code. The Provincial Court Judge did not accept the defense of accident but failed to deal with the other defense raised. The accused appealed to the Court of Queen’s Bench. HELD: Appeal dismissed.
1) The use of force is only permitted to prevent an offence under S. 27 where the offence would be one for which the perpetrator could be arrested without warrant and where there is a risk of immediate and serious physical harm.
2)In this case, the wife, assuming she was guilty of an offence under S.282, could have been arrested without warrant. There was no evidence, however, of any risk of immediate and serious harm to the child. No defense was therefore available under S. 27.
3)The complaints of the accused relating to the wrongful exclusion and admission of evidence and the manner in which the trial was conducted were without merit. The trial judge went out of his way to accommodate the accused at his trial since he was unrepresented.
R v. Robinson: The accused killed a man but claimed to have acted without intent because he was intoxicated. The evidence revealed that he had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. After being instructed on provocation, self-defense and intoxication, the jury found the accused guilty of second‑degree murder. The Court of Appeal, however, allowed his appeal.
DPP v. Stonehouse held that the defendant had been charged with attempting to obtain property by deception by fabricating his death by drowning in the sea off Miami in Florida. The final act alleged to constitute the offence occurred outside the jurisdiction of the English courts.
Held: The charge was justiciable in England. The defendant appealed conviction on counts of attempted obtaining by deception on the ground, among others, of judicial misdirection in the following words: ‘There is an attempt by the accused within the legal meaning of that word ‘attempt’ if you are satisfied that the matters, I have stated to you are proved.’
ELEMENTS OF AN ATTEMPT TO COMMIT AN OFFENCE
- To begin to put the intention into fruition by means adapted to its fulfilment
- To manifest the intention by some overt act when the actual offence is yet to be committed
- The accused person has the intention to bring about the commission of the actual crime.
See section 508-512 of the criminal code. “Any person who attempts to commit a felony or misdemeanor, is guilty of an offence which, unless otherwise stated, is a misdemeanor.
- Punishment of attempts to commit felonies. Any person who attempts to commit a felony of such a kind that a person convicted of it is liable to the punishment of death or of imprisonment for a term of fourteen years or upwards, with or without other punishment, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years.
Any person who attempts to commit a felony of any other kind is liable, if no other punishment is provided, to a punishment equal to one half of the greatest punishment to which an offender convicted of the felony which he attempted to commit is liable.
- Punishment of attempts to commit misdemeanors. Any person who attempts to commit a misdemeanor is liable, if no other punishment is provided, to a punishment equal to one half of the greatest punishment to which an offender convicted of the offence which he attempted to commit is liable.
- Punishment of attempts to commit simple offences. Any person who attempts to commit a simple offence is liable, if no other punishment is provided, to one half of the greatest punishment to which an offender convicted of the offence which he attempted to commit is liable.
- Reduction of punishment. When a person is convicted of attempting to commit an offence, if it is proved that he desisted of his own motion from the further prosecution of his intention, without its fulfilment being prevented by circumstances independent of will, he is liable to one half only of the punishment of which he would otherwise be liable. If that punishment is imprisonment for life, the greatest punishment to which he is liable is imprisonment for seven years. “
See the following:
– Jegede v. The state
– Ozigbo v. Cop: The appellant, who was charged on several counts with two other persons later acquitted, was convicted by the Senior Magistrate on a count of stealing a cheque leaf, a count of forgery of the cheque and a count of attempting to steal the amount specified in the forged cheque.
On further appeal to the Supreme Court from the High Court, his grounds of appeal complained only against the convictions of stealing and attempting to steal but his counsel, after concluding his submissions, which also covered the forgery conviction, sought leave to add a ground of appeal against that conviction.
The cheque was made payable to a fictitious partnership with a fictitious account opened by means of forged forms in a bank where the appellant worked as an accountant, and it was dishonored by another bank on which it was drawn because the amount was in excess of the overdraft facilities allowed its customer, the owner of the cheque leaf, whose signature on it had in fact been forged.
There was no evidence that the appellant had any connection with that customer or that he had any opportunity to steal the cheque leaf; nor was there any satisfactory evidence of the date of its theft.
In regard to the forgery count, the magistrate preferred the expert evidence for the prosecution to that of the defense expert witness and further satisfied himself on the issue by making his own comparison between the writing on the forged cheque and the genuine handwriting of the appellant.
(1) On the evidence the presumption of recent possession, arising under s.148(a) of the Evidence Act, could not be invoked as regards the count of stealing, as it was not proved that the cheque leaf came into the possession of the appellant soon after the theft;
(2) Having regard to the acquittal of the appellant on the count of uttering and the absence of evidence of any other act immediately connected with stealing, there had been no act on the part of the appellant constituting an attempt to steal;
(3) Since the appellant had been represented by counsel throughout the proceedings on appeal, it was too late, after the conclusion of the submissions of counsel for the appellant, for the Supreme Court to allow an amendment of the grounds of appeal to include a fresh ground of complaint against conviction.
– Sanusi v. The state
– Almino v. The state
– R v. Agani
– R v. George
– R v. Ogunmogu
Attempt is an incomplete or inchoate offence. See section 4 of Criminal code’s definition of attempt. “When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence. it is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. The same facts may constitute one offence and an attempt to commit another offence. “
In the case of Christopher Dibia v. The state (2012) LPELR 8564-CA, the court stated that:
“An attempt to commit an offence means the perpetuation of the said act so near the substantive offence that except it is interrupted in some way, will lead to the commission of that offence. The position of the law was put more succinctly in Alhaji Yakubu Sanni v. The state (1993) NWLR Pt.285 99 of 199 where it was held thus:
‘It is the law that in every crime, there is first an intention to commit it. Secondly, the preparation to commit it and thirdly, the attempt to commit it. If the third stage, the attempt is successful, then the crime is complete. The test for determining whether the act constitute an attempt or preparation is whether the overt act already done are such that if the offender changes his mind, and does not proceed further in its project, the act already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause will lead to… ‘
ELEMENTS OF ATTEMPT
In the case of Ahmed v. Nigerian Army, (2010) LPELR 8969-CA, the following were established as elements in any attempt to commit an offence:
- A physical act by the offender, sufficiently proximate to complete the offence
- An intention on the part of the offender to commit the complete offence.
In the case of Mike Amadi v. FRN (2008)12 SC. Pt 3. Pg55. The defendant was convicted for an attempt to obtain money by false pretense. In this case, the court held that it was enough for the prosecution that the defendant had represented himself as a staff of CBN to the complainant and that the defendant had sent a mail to the complainant demanding for payment of some amount of money for the processing of his entitlement from the federal government of Nigeria.
The main defense in attempt to commit an offence is lack of intent to commit the offence.
Section 383(1) of the Criminal code prescribes the offence of stealing. It provides:
“A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.”
Also, section 382 specifies those things that are capable of being stolen.
“2. Things capable of being stolen;
-Every inanimate thing whatever which is the property of any person, and which is movable, is capable of being stolen.
-Every inanimate thing which is the property of any person, and which is capable of being made movable, is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it.
-Every tame animal, whether tame by nature or wild by nature and tamed, which is the property of any person, is capable of being stolen: but tame pigeons are not capable of being stolen except while they are in a pigeon‐house or on their owner’s land.
-A thing in action is capable of being stolen.
-Animals wild by nature, of a kind which is not ordinarily found in a condition of natural liberty in Nigeria, which are the property of any person, and which are usually kept in a state of confinement, are capable of being stolen, whether they are actually in confinement or have escaped from confinement.
-Animals wild by nature, of a kind which is ordinarily found in a condition of natural liberty in Nigeria, which are the property of any person, are capable of being stolen while they are in confinement and while they are being actually pursued after escaping from confinement, but not at any other time. An animal wild by nature is deemed to be in a state of confinement so long as it is in a den, cage, sty, tank, or other small enclosure, or is otherwise so placed that it cannot escape and that its owner can take possession of it at pleasure.
-An ostrich on an enclosed ostrich farm is capable of being stolen. The term “animal” includes any living creature other than mankind.
-Wild animals in the enjoyment of their natural liberty are not capable of being stolen, but their dead bodies are capable of being stolen.
-Everything produced by or forming part of the body of an animal capable of being stolen is capable of being stolen. “
To prove the offence of stealing, the following must be taken into consideration;
-The thing to be stolen must have value
-It must have an owner
-There must be a fraudulent intent to deprive the owner of his ownership
-The item must be movable or capable of being moved
-There must be asportation
-It must be without the consent of the owner.
See further the case of R v. Taylor (2016):
“On the 23rd of June 2012, Mr. Taylor was driving a van belonging to one of his friends in order to collect another friend. Whether or not he had the first friend’s consent, so as to make out the offense of simple vehicle taking would have been an issue for any trial. While, Mr. Taylor was driving the van, he had a collision with a scooter, during this, the scooter slid under the van and the owner was killed. Mr. Taylor was uninsured in relation to the van, and after he was breathalyzed, it transpired that he was over the legal alcohol limit. Mr. Taylor was charged with a variety of offenses including, Aggravated vehicle taking, the death of Mr. Davidson-Hackett (The man on the scooter) whilst uninsured.
However, after a detailed analysis of all evidence, it was decided that the crown could not conclude that the accident and Mr. Davidson-Hackett death was caused, or contributed to Mr. Taylor and was let off on the offense of strict liability.
The term conversion is not defined in the code but in civil law it means dealing with a property in a manner inconsistent with the right of the true owner. A thing must be moved and physical possession taken thereof.
It must be established that the defendant actually denied the owner’s right to the property. Conversion means intentionally dealing with goods in a manner that is inconsistent with the right of the true owner-Atkin J in Lancashire and Yorkshire Railway Company V MacNicol. For example, selling, pledging, altering… another person’s property. – R v. Anyandigwu
– R v. Adewusi
– Rajudu Mbaruhu v. R
– R v. Effiong
MENS REA OF STEALING
The intention must be fraudulent. S. 383(2) provides:
“(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts
to his own use or to the use of any other person anything capable of being stolen, is said to
steal that thing.
(2) A person who takes or converts anything capable of being stolen is deemed to do so
fraudulently if he does so with any of the following intents-
(a) an intent permanently to deprive the owner of the thing of it. See the case of R v. Easom
(b) an intent permanently to deprive any person who has any special property
in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the
person taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; see the case of R v. Bailey
(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.” See the case of State v. Odimozor
FINDER OF A LOST PROPERTY
The finder of a lost property retains ownership of the property until the true owner has been ascertained. As such, finder of a lost property has the owner’s right. See the case of Armory v. Delalire (1722)1 SCIRA 505
Also, section 390 of the criminal code provides that stealing is a felonious offence, punishable with three years’ imprisonment, depending on what is stolen.
DEMANDING PROPERTY WITH MENACES WITH INTENT TO STEAL
Section 46 of Criminal code provides that:
“Any person who, with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or by any other person, if the demand is not complied with, is guilty of a felony, and is liable to imprisonment for three years.”
From the foregoing, the offence is complete as soon as the threat is given. This threat can be given orally, in writing and by gesture.
The point to prove here is that:
- The person makes a demand
- The demand is with intent to steal
- He gave a threat
See the case of Oshidola v. Cop and Ebute v. IDP
It is worthy to note that demanding with menace in writing is provided for in section 407 of the criminal code which provides that:
” Any person who, with intent to extort or gain anything from any person, and knowing the contents of the writing, causes any person to receive any writing demanding anything from any person
without reasonable or probable cause, and containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with, is guilty of a felony, and is liable to imprisonment for fourteen years.”
See the case of Wada v. IDP, Omotosho v. COP, COP v. Edede
Section 427 of the Criminal code states that:
“Any person who receives anything which has been obtained by means of any act constituting a felony or misdemeanor, or by means of any act done at a place not in Nigeria, which if it had been done in Nigeria would have constituted a felony or misdemeanor, and which is an offence under the laws in force in the place where it was done, knowing the same to have been so obtained, is guilty of a felony.”
Points to prove here are:
1.The accused person must have received the property in question. See R v. Willie, Osakwe v. The state, R v. Uko
- The property to be received must have been previously stolen or unlawfully received
- The receiver must at the time of receiving or obtaining that the item was stolen.
In the case of R v. Adebowale the court stated that to prove that the accused has a guilty knowledge, the following may be established:
- The property was cheaply sold
- The property was concealed when it was brought to him
- The negotiation took place in the dark, not in market overt
- Payment was made to a person who on the face of it, had no interest in it.
- There was removal of mask or means of identification by the owner
- The evidence of scienta
- If the accused person cannot be convicted of stealing, the other person cannot be convicted of receiving
- A wife of Christian marriage cannot be convicted of stealing from her husband if the marriage still subsists.
See further, section 167(a) of Evidence Act and section 430 of criminal code
Rape is one of the prevalent crimes in Nigeria. There are other category of sexual offences. However, rape is the most grievous. Other category of sexual offences includes: sexual assault, indecent exposure, defilement, prostitution, unnatural offences, etc.
Rape is a situation where a man has sexual intercourse with or sexually penetrates a woman or girl in the absence of consent.
WHY PEOPLE RAPE
- Mental sickness
- Lack of self-control
- Gender prejudice
- Romantic frustration
These are combination of some of the reasons why rape is prevalent in our society
Section 357 of the Criminal code provides that:
“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of an offence which is called rape.” Moving further, section 282 of the Penal code provides that:
“ A man is said to commit rape who, except in the case referred to in subsection (2) of this section, has sexual intercourse with a woman in any of the following circumstances-
(a) against her will;
(b) without her consent;
(c) with her consent, when her consent has been obtained by putting her in fear of
death or of hurt;
(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
It is worthy to note that the offence of rape is complete upon penetration. As such, attempt, indecent assault or sexual assault cannot suffice as rape. See section 6 of criminal code for meaning of unlawful carnal knowledge. It is also worthy to note that sexual intercourse in the legal context is when the penis penetrates the vagina.
Russell on Crime state that prosecution must prove “res in res” i.e., thing in the thing. What is needed is that slight penetration occurs up to the point of labia minora. Sexual climax or ejaculation is not needed /required to prove that there had been penetration and time is not of the essence.
A girl / woman who alleges that she had been raped but still have her hymen intact and is still a virgin does not preclude the fact that a rape occurred. Hymenal rupture is not required.
Also, when a woman alleges rape, there must be proof by corroboration. Corroboration is independent testimony that is offered to support the likelihood of a crime and who committed the crime.
Medical examination is also very vital in the proof of rape, especially in establishing penetration.
It is also worthy to note that sexual penetration of a woman with her consent is not rape. As such, consent is important in the proof of rape. *Section 74 of Sexual Offences Act 2003 of England* provides that:
“A person consents if he agrees by choice and has the freedom and capacity to make that choice. ”
However, the law presumes that minors lack the capacity to make this choice. Also, once who is incapable or drunk cannot make consent.
Consent is also a positive or conscious agreement to sexual intercourse by a person knowing all the circumstances or nature of the act. Consent can also represent a willing exercise of choice to have intercourse with the person penetrating at that time.
This happens where the perpetrator mistakenly presumes that there was consent from the woman. See the case of DPP v. Morgan
Also, if anyone chooses to get an advantage, but was taken advantage of, should the law recognize her as raped? Will consent be vitiated because of misrepresentation/ fraud?
According to Section 357 of the Criminal Code, “… by means of force and fraudulent representation as to the nature of the act”.
Therefore, it is not at all times. See the case of R v. Flattery and R v. Williams.
The law prescribes the age of legal consent. Anyone below that age is by law incapable of consenting. Thus, sex with any such person is rape as she will not be able to give consent.
See generally Sections 214 – 224 of the Criminal Code on statutory rape when consent, or lack of it is immaterial and all needed to be proved is unlawful carnal penetration.
- Unnatural offences
Any person who‐
(1) has carnal knowledge of any person against the order of nature; or
(2) has carnal knowledge of an animal; or
(3) permits a male person to have carnal knowledge of him or her against the order of nature,
is guilty of a felony and is liable to imprisonment for fourteen years.
- Attempt to commit unnatural offences
Any person who attempts to commit any of the offences defined in section 214 of this Code, is guilty of
a felony and is liable to imprisonment for seven years. The offender cannot be arrested without warrant.
- Indecent treatment of boys under fourteen. Any person who unlawfully and indecently deals with a boy under the age of fourteen years, is guilty of a felony and is liable to imprisonment for seven years.
The term “deal with” includes doing any act which, if done without consent, would constitute an assault as hereinafter defined.
- Indecent practices between males. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for three years. The offender cannot be arrested without warrant.
- Defilement of girls under thirteen. Any person who has unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony and is liable to imprisonment for life, with or without caning.
Also, under the Nigerian law, any lady below the age of 16 years is not capable of consenting to sex. It is also worthy to note that rape of an underage is called “defilement”.
Any person who attempts to have unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony and is liable to imprisonment for fourteen years, with or without caning. A prosecution for either of the offences defined in this section of this Code shall be begun within two months after the offence is committed. A person cannot be convicted of either of the offences defined in this section of this Code upon the uncorroborated testimony of one witness.
- Householder permitting defilement of young girls on his premises. Any person who, being the owner or occupier of any premises, or having, or acting, or assisting in the management or control of any premises, induces or knowingly permits any girl of such age as is in this section of this Code mentioned to resort to or be in or upon such premises for the purpose of being unlawfully carnally known by any man, whether a particular man or not, is guilty of an offence. If the girl is of or above thirteen and under sixteen years of age, he is guilty of a misdemeanor and is liable to imprisonment for two years, with or without caning. If the girl is under the age of thirteen years, he is guilty of felony, and is liable to imprisonment for life, without caning.
- Defense to charge under preceding section. It is a defense to a charge of any of the offences defined in section 219 of this Code to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years.
- Defilement of girls under sixteen and above thirteen, and of idiots
Any person who‐
(1) has or attempts to have unlawful carnal knowledge of a girl being of or above thirteen years
and under sixteen years of age; or
(2) knowing a woman or girl to be an idiot or imbecile, has or attempts to have unlawful carnal
knowledge of her, is guilty of a misdemeanor and is liable to imprisonment for two years, with or without caning. It is a defense to a charge of either of the offences firstly defined in this section of this Code to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years. A prosecution for any of the offences defined in this section of this Code shall be begun within two months after the offence is committed
A person cannot be convicted of any of the offences defined in this section of this Code upon the uncorroborated testimony of one witness.
- Indecent treatment of girls under sixteen
Any person who unlawfully and indecently deals with a girl under the age of sixteen years is guilty of a
misdemeanor, and is liable to imprisonment for two years, with or without caning. If the girl is under the age of thirteen years, he is guilty of a felony and is liable to imprisonment for
three years, with or without caning.
It is a defense to a charge of the offence defined in this section to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years.
The term “deal with” includes doing any act which, if done without consent, would constitute an assault as hereinafter defined.
222A. Causing or encouraging the seduction or prostitution of a girl under sixteen
(1) Whoever, having the custody, charge or care of a girl under the age of sixteen years, causes or encourages the seduction, unlawful carnal knowledge or prostitution of, or the commission of an indecent assault upon, such a girl, shall be liable to imprisonment for two years.
(2) For the purposes of this section, a person shall be deemed to have caused or encouraged the seduction, unlawful carnal knowledge or prostitution of, or the commission of an indecent assault upon, a girl who has been seduced, unlawfully carnally known, or indecently assaulted, or who has become a prostitute, if he has knowingly allowed her to consort with, or to enter or continue in the employment of, any prostitute or person of known immoral character.
222B. Allowing person under sixteen to be in brothels
(1) Whoever, having the custody, charge or care of a child or young person who has attained the age of four years and is under the age of sixteen years, allows that child or young person to reside in or frequent a brothel, is liable to a fine of one hundred naira or to imprisonment for six months or to both such fine and imprisonment.
(2) If, upon the trial of a person charged with an offence against section 219 of this Code, the facts proved in evidence authorize a conviction for an offence against this section of this Code, the person charged may be convicted of the offence against this section of this Code although he was not charged with that offence.
222C. Restriction on defense of reasonable belief Notwithstanding anything contained in sections 220, 221 and 222, it shall only be a defense to a charge of any of the offences defined in sections 219, 221 (1) and 222 of this Code to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years if the accused person was under the age of 21 years at the time when the offence is alleged to have been committed and has not previously been charged with any of such offences.
- Procuration; Any person who
(1) procures a girl or woman who is under the age of eighteen years to have unlawful carnal connection with any other person or persons either in Nigeria or elsewhere; or
(2) procures a woman or girl to become a common prostitute either in Nigeria or elsewhere; or
(3) procures a woman or girl to leave Nigeria with intent that she may become an inmate of a brothel elsewhere; or
(4) procures a woman or girl to leave her usual place of abode in Nigeria, with intent that she may, for the purposes of prostitution, become an inmate of a brothel either in Nigeria or elsewhere, is guilty of a misdemeanor and is liable to imprisonment for two years.
A person cannot be convicted of any of the offences defined in this section of this Code upon the uncorroborated testimony of one witness.
The offender may be arrested without warrant.
- Procuring defilement of woman by threats or fraud, or administering drugs
Any person who‐
(1) by threats or intimidation of any kind procures a woman or girl, to have unlawful carnal connection with a man either in Nigeria or elsewhere; or
(2) by any false pretense procures a woman or girl to have unlawful carnal connection with a man, either in Nigeria or elsewhere; or
(3) administers to a woman or girl, or causes a woman or girl, to take, any drug or other thing with intent to stupefy or overpower her in order to enable any man, whether a particular man or not, to have unlawful carnal knowledge of her, is guilty of a misdemeanor and is liable to imprisonment for two years.
A person cannot be convicted of any of the offences defined m this section upon the uncorroborated testimony.
MARITAL OR MATRIMONIAL RAPE
The Criminal Code precludes UNLAWFULNESS from carnal connection between husbands and wife. In other words, allegations of rape cannot be made between husband and wife, even if the sexual intercourse is violent with fear or intimidation, threat, blackmail, etc.
As a matter of fact, some authors say that upon marriage, husbands and wives enter into an oath to give themselves / their body to one another irrevocably. This can be seen in marriage oaths.
However, this position has been challenged by various women activist and feminists. Therefore, marital rape had been recognized in many countries of the world. Although it has been a controversial issue.
Section 282(2) of the Penal Code states that sexual intercourse by a man with his own wife is not rape if she has attained puberty. Therefore, our law does not recognize marital rape.
Marital rape should however be recognized in some of these grounds:
- Where the act of intercourse was accompanied with an infliction of bodily injury, a case of rape may be plausible;
- If the husband applies force or violence much more than necessary or needed to have intercourse;
- If there has been previous marital disharmony i.e., physical separation;
- If the couple have started the process of judicial separation/divorce even though they may still be legally married;
- Where the marriage is forced on the wife;
- Where the husband compels the wife to go to unnatural/excessive sexual positions;
- When the wife is unhealthy / sick;
- Where the husband has infection or STDs
GENDER SPECIFITY AND GENDER NEUTRALITY IN RAPE
The question here is can a man be raped? Can a woman rape? Rape is gender specific and it should not remain so. The reasons commonly adduced for this include:
- That men are usually stronger than women and it usually takes force to commit rape;
- Women do not possess such sexual drive, aggressiveness, urge and desire that push a man;
- Women do not have penis or such organ that can be used to penetrate;
- If a man allegedly, under the threat of being raped was successfully able to have sex, it means that he must have attained erection which can signify consent.
However, this argument can be debunked as in modern times, rape is much more than penis -vagina sex. Oral sex, anal sex, breast and object rape can be done, even though the law recognize the penis as the only natural instrument.
Erection is an involuntary reaction. In such instances that a man has an erection while being attacked, should not be seen as consent or agreement. Body reflex reaction have been proved to be involuntary in the case of women.
In case of strength, many ladies have learnt martial defense techniques or very strong woman, or two or more women can easily subdue men. They may also be armed with weapons. It is only sensible to recognize that men can be raped by women, women can be raped by other women etc. Thus, both sexes can be both victims and assailant. Therefore, a man can be raped and a woman can rape a man.
ARGUMENT AS TO GENDER NEUTRALITY OF RAPE
The argument today is that rape should be a gender-neutral crime as both genders could be victim or assailant.
Section 42 of the constitution provides for right to freedom from discrimination. Therefore, there should be no discrimination as regards rape law. Also, Section 17(2a) of the constitution provides that every citizen shall have equality of right, obligation and equal opportunity before the law.
Therefore, it is reasonable to define rape in gender-neutral term.
As a matter of fact, the penis is not the only instrument of rape. Section 1(1) of Violence Against Persons and Prohibition Act provides “that a person commits the offence of rape if he or she penetrates the vagina, Anus or mouth of another person with any other part of his or her body or anything else.” As such, this law recognizes object rape one oral rape. However, the law only applies in the FCT, Abuja.
RAPE TRIAL, PUNISHMENT AND SENTENCING
Generally, it is believed that rape is largely under reported because of the stigma and disgrace faced by the victims. So, many rape cases get seated out of court. Looking at all this, the law has now afforded victims of rape anonymity. Also, evidence of bad character is inadmissible in court.
In terms of punishment, anyone who commits the offence of rape will be sentenced to life imprisonment according to section 385 of the criminal code. Also, section 283 of the Penal code provides that anyone guilty of rape is liable for life imprisonment.
Also, attempted rape attracts 14 years imprisonment.
AGGRAVATING AND MITIGATING CIRCUMSTANCE OF RAPE
Some of the aggravating circumstance of rape can include the following:
-Violence in the course or after rape
-Rape of minors
-Rape with humiliation
-Betrayal of trust by a care giver
Some of the mitigating circumstance of rape can include the following:
-Seduction, luring and tempting
PREVENTING OR CURBING RAPE
- There must be care of victims and more compensation
- Victims should be given immediate responses
- Rehabilitation, advice and counsel for victims
Rape remains a serious crime and beyond sexual intercourse. Consent and penetration are very important in proving rape.
In looking at consent, the conservatives are of the perspective that consent is an expression or agreement to make a choice. It is any choice that the “victim” makes to gain a benefit or to avoid harm. The liberalist are however of the opinion that any choice to have sex based on coercion, force or taking advantage of someone who finds herself in an unfortunate situation cannot be deemed to be consent.
Therefore, fraudulently obtained consent should not generally be seen as rape except.
- When the deceit is at the nature of the act
- When it has to do with impersonation
Noteworthy in this crime is that even though they are incomplete offences, the Actus reus and mens rea exists right from the plan. Also, the criminal code does not define conspiracy. However, certain sections of the criminal code criminalize conspiracy in some offences as seen in section 37, 125, 126, etc.
In the case of R v. Mojekodunmi the court held that a conspiracy consists not merely of intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means so long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is in itself punishable if for a criminal object or for the use of criminal means. The gist of the offence of conspiracy lies not in doing the act or effecting the purpose for which the conspiracy is formed but in the forming of the scheme or agreement between the parties.
ELEMENTS OF OFFENCE OF CONSPIRACY
- An unlawful purpose.
- Doing a lawful act by unlawful means
- The conspirators do not need to know one another.
It is worthy to note that there can’t be conspiracy between husband and wife of a statutory marriage. However, they both can conspire with a third party. Also, one cannot conspire with a child or a lunatic.
Section 401 of the Criminal code provides that:
” Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is said to be guilty of robbery.”
The offence of robbery entails stealing by using actual violence or threatening to use violence. Also, the punishment for robbery is 21 years imprisonment. It must however be noted that the offence of robbery is different from armed robbery. The offence of armed robbery entails the use of an offensive weapon or when one is in possession of an offensive weapon for the purpose of stealing. See the case of *Babalola v. The state* The punishment for armed robbery is death penalty.
It is also worthy to note that it will not amount to robbery/armed robbery where the robbers came to the house and the victim was not present at home. Hence, it could be called burglary.
Also, robbers need not be in possession of an offensive weapon to effect violence.
ELEMENTS OF ROBBERY
- There must be stealing
- There must be actual use or threat of use of violence
- The violence must be at the time of stealing
See the case of Ijaguna v. The public
In 1970, the use of arms became so rampant which led the military government to promulgate the Robbery and Firearms (special provision) Decree now called ROBBERY AND FIREARMS ACT 2004 This expanded the purview of offences like treating of suspects who sustains injury, sheltering of offenders, offence of receiving items stolen and being in possession of firearms.
Section 411 of the criminal code provides that:
“Any person who-
(1) breaks and enters the dwelling-house of another with intent to commit a felony therein; or by
(2) having entered the dwelling-house of another with intent to commit a felony therein, or having committed a felony in the dwelling-house of another, breaks out of the dwelling-house; is guilty of a felony, and is liable to imprisonment for fourteen years. if the offence is committed in the night, the offender is liable to imprisonment for life.
See Section 410 for the meaning of the offence of breaking “A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar flap, or other thing, intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is said to break the building. A person is said to enter a building as soon as any part of his body or any part of any instrument used by him is within the building. A person who obtains entrance into a building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the building.”
See further Section 413-416 for offences of breaking into other places apart from dwelling house.
“413. Breaking into building and committing felony
Any person who‐
(1) breaks and enters a schoolhouse, shop, warehouse, store, office, or counting‐house, or a building which is adjacent to a dwelling‐house and occupied with it but is not part of it, and commits a felony therein; or
(2) having committed a felony in a schoolhouse, shop, warehouse, store, office, or counting‐ house, or in any such other building as last mentioned, breaks out of the building, is guilty of a felony and is liable to imprisonment for fourteen years.
- Breaking into building with intent to commit felony. Any person who breaks and enters a schoolhouse, shop, warehouse, store, office, or counting‐house, or a building which is adjacent to a dwelling‐house and occupied with it but is not part of it, with intent to commit a felony therein, is guilty of a felony and is liable to imprisonment for seven years.
- Breaking into place of worship and committing felony. Any person who breaks and enters a building ordinarily used for religious worship and commits a felony therein, or having committed a felony in any such building breaks out of it, is guilty of a felony and is liable to imprisonment for fourteen years.
- Breaking into place of worship with intent to commit felony. Any person who breaks and enters a building ordinarily used for religious worship, with intent to commit a felony therein, is guilty of a felony and is liable to imprisonment for seven years.”
ELEMENTS OF HOUSE BREAKING
- Breaking into a dwelling house
- There must be entry
- It must be at day time
- Into the dwelling house of another
- Intent to commit felony therein
ELEMENTS OF BURGLARY
- Breaking into a dwelling house
- There must be entry
- It must be at night
- Into the dwelling house of another
- Intent to commit felony therein
OFFENCE OF ENTRY
Entry is committed if any part of the body or instrument used by the accused person penetrates the dwelling house.
Note that offence of entry into a dwelling house to commit an offence takes place when a person enters into an open house. Note further that one can Ask enter a dwelling house by deceit. See R v. Boyce (1954) 2QB 292.
The punishment for house breaking is 14 years imprisonment while burglary is life imprisonment while the punishment for entry is 7years imprisonment.
This is covered by section 419 of the criminal code which states that:
“Any person who by any false pretense, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a felony, and is liable to imprisonment for three years.”
The specific law that regulates this offence in Nigeria is Advance Fee Fraud and other related offences Act
See the following cases:
Achanra v. IGP
Ede & Anor v. FRN
Osun V. DPP
The points to prove in this offence are:
- That there was pretense
- That the pretense emanated directly from the defendant
- That the defendant knows the falsity of pretense
- There was an intent to defraud
- That the thing obtained was capable of being stolen
- That the defendant induced the owner to transfer the goods.
Corruption defiles definition. As such, one can adopt a legal, political or moral definition of corruption. This is to say corruption is wide and vast. Some examples of corruption are political corruption, corruption at home, in school, etc.
It is worthy to note that corruption has also been in existence even before the advent of colonialism. However, it gained footing during the colonial period. Also, corruption can exist both in public and private sectors. Corruption does not all have to do with age or gender. Therefore, it could exist at any level.
CAUSES OF CORRUPTION
-Lack of contentment
-Poor youth empowerment
-Peer group influence
-Misuse of opportunity
CONSEQUENCE/EFFECT OF CORRUPT PRACTICES
-Low life expectancy
-Poor standard of living
LEGAL FRAMEWORK TO TACKLE CORRUPTION IN NIGERIA
The legal framework to tackle corruption in Nigeria are:
-ICPC Act 2000 (section 2 and S8-24)
-EFCC Act 2002 (s 13-17)
-Criminal Code Act (s 98-105)
-Penal code (s 115-122)
-Recovery of Public Property Act
-Public procurement Act
-Fiscal responsibility Act
Money Laundering Act
-Advanced Free fraud Act
PROBLEMS OF THE LEGAL FRAMEWORK
-Lopsided application of the law
-There is problem of definition of corruption and corrupt practices
-Private sector/ public sector dichotomy
-Lack of political will to fight corruption
-The judiciary has been compromised
MEASURES AND STRATEGIES TO EFFECTIVELY TACKLE CORRUPTION IN NIGERIA
- Strict enforcement of the law
- Re-orientation and public enlightenment
- More active use of freedom of Information Act
- Reduction of money in politics
- A person should not be sworn in if the case is contested
- Infrastructural development and housing support
- Unemployment allowance, welfare system, insurance allowance, old age allowance
- Immunity clauses should be removed
- Synergy between law enforcement agencies
- International collaboration, mutual legal assistance treaties, extraction treaties; and
- Judicial independence
Stages in prosecution includes the following:
In receipt of complaints, the police exercise a great deal in investigating or not. See Ajayi v. The state. Here, complaints can be lodged by the victim or persons affected by the incidence. The role of the police in investigation entails the following:
-in deciding to investigate or not, the police will consider – what is the cost and what is the end of justice.
Also, in investigation, there are other duties the police will perform like-
a.) Taking a statement from the complainant. See Gani Fawehinmi v. IGP
It is worthy to note that whatever the police does from arrest to arraignment must be in accordance with sections 3,6,7,8 of ACJA
b.) Admittance of suspect to bail. See section 31 of ACJA. We also Eda v. Cop and Adebo v. Omotola
c.) Latent investigation. See Solomon v. The state
d.) The police’s duty to ensure that other parties in the prosecution must perform their roles. See section 105 and 376(2) of ACJA
- Prosecution of the case is also a duty of the police
See section 37 of the Criminal code
(1) Any person who levies war against the State, in order to intimidate or overawe the President
or the Governor of a State, is guilty of treason, and is liable to the punishment of death.
(2) Any person conspiring with any person, either within or without Nigeria, to levy war against
the State with intent to cause such levying of war as would-be treason if committed by a citizen of Nigeria, is guilty of treason and is liable to the punishment of death:
Provided that nothing in this section shall prevent any act from being treason which is so by the laws of
England as in force in Nigeria.
(3)Note that treasonable felony is the preparation of treason while treasonable felony is the actual levying of war against the state either at the federal or state level to the intent that the sovereign is overhauled. It is an offence against the public order and it is immaterial whether the president or governor was indeed overhauled.
The offence of treason is punishable under section 516 of the criminal code with life imprisonment while section 37 punishes conspiracy to commit treason. Section 39 punishes one who commits treason but has not attained the age of majority while section 38 makes it criminal for one to instigate people outside the country. See the cases of Rv. Enahoro and R v. Boro.
See section 51 of Criminal code. “(1) Any person who‐
(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention;
(b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication;
(d) imports any seditious publication, unless he has no reason to believe that it is seditious and is guilty of an offence and liable on conviction for a first offence to imprisonment for two years or to a fine of two hundred naira or to both such imprisonment and fine and for a subsequent offence to imprisonment for three years and any seditious publication shall be forfeited for the State.
(2) Any person who without lawful excuse has in his possession any seditious publication is guilty of an offence and liable on conviction, for a first offence, to imprisonment for one year or to a fine of one hundred naira or to both such imprisonment and fine, and for a subsequent offence, to imprisonment for two years; and such publication shall be forfeited to the State.”
This is to the effect that if one is aware of been in possession of seditious material, he will be guilty. See section 50 for meaning of seditious intention, seditious publication, seditious words and seditious contempt. See the case of IGP v. Anobogun. Note also that law of sedition seeks to strike a balance between right to freedom of expression and maligning of the govt. See further the case of DPP v. Obi
This is governed by section 97 of the Criminal code and Official Secret Oat
“97. Disclosure of official secrets
(1) Any person who, being employed in the public service, publishes or communicates any fact which comes to his knowledge by virtue of his office, and which it is his duty to keep secret, or any document which comes to his possession by virtue of his office and which it is his duty to keep secret, except to some person to whom he is bound to publish or communicate it, is guilty of a misdemeanor, and is liable to imprisonment for two years. Public servant abstracting, etc., documents
(2) Any person who, being employed in the public service, without proper authority abstracts, or makes a copy of, any document the property of his employer is guilty of a misdemeanor and is liable to imprisonment for one year.”
Prosecution for an offence under the provisions of this section of this Code shall not be commenced except by, or with the consent of, a law officer.
In Nigeria, the Dishonored Cheque Offences Act stands as a crucial piece of legislation aimed at ensuring the integrity and reliability of financial transactions. This Act makes it an offense for any individual or entity to induce the delivery of goods, services, or the settlement of a lawful obligation through a cheque that is later dishonored due to insufficient funds in the drawer’s account. This article delves into the specifics of this legislation, elucidating its purpose, key provisions, legal implications, and its impact on business practices and financial transactions in Nigeria.
Purpose of the Dishonored Cheque Offences Act:
The primary purpose of the Dishonored Cheque Offences Act is to uphold the credibility and effectiveness of cheques as a medium of financial transactions in Nigeria. By penalizing individuals who issue cheques without adequate funds to cover the stated amount, the Act aims to deter fraudulent activities and maintain trust within the financial system.
Key Provisions of the Act:
1. Criminal Offense:
The Act establishes the issuance of a dishonored cheque as a criminal offense. If an individual issues a cheque knowing that there are insufficient funds to cover the amount, and it is dishonored upon presentation, they can be held legally accountable.
2. Intent to Defraud:
To constitute an offense under this Act, it must be proven that the drawer had the intent to defraud by inducing the recipient into believing that the cheque would be honored upon presentation.
3. Reasonable Time for Presentation:
The Act stipulates that the cheque must be presented within a reasonable time to the bank. If the cheque is presented within this timeframe and is dishonored due to insufficient funds, the offense is deemed to have occurred.
Offenders found guilty under this Act may face penalties, including fines or imprisonment. The severity of the punishment often depends on the amount of the dishonored cheque and other circumstances surrounding the offense.
The Dishonored Cheque Offences Act has several legal implications that influence financial transactions and business practices in Nigeria:
1. Risk Mitigation:
Businesses and individuals are incentivized to conduct due diligence before accepting cheques as a form of payment. They must verify the credibility of the drawer’s account to mitigate the risk of receiving a dishonored cheque.
2. Promoting Financial Responsibility:
The Act encourages individuals to manage their finances responsibly and ensures that cheques are issued based on actual available funds, upholding the integrity of the banking system.
3. Enhancing Legal Accountability:
The Act imposes legal accountability on individuals who engage in fraudulent practices involving dishonored cheques, deterring such activities and promoting a culture of compliance with financial laws.
The Dishonored Cheque Offences Act plays a vital role in maintaining the sanctity of financial transactions in Nigeria. By criminalizing the issuance of dishonored cheques, the Act acts as a deterrent against fraudulent practices, ultimately contributing to a more reliable and trustworthy financial environment in the country. Understanding and abiding by the provisions of this Act is essential for individuals and businesses engaging in financial transactions involving cheques.