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28 Jul 2017

July 28, 2017

SOURCES OF CRIMINAL LAW IN NIGERIA


Sources of Nigerian law denote where Nigerian law came from. The major question is that where did we get the present laws that we now call our own? Did they fall from heaven? Where did we get them from? We generally have six sources of Nigerian law they include: 
1. The Received English law: This consists of the common law, doctrines of equity and statutes of general application which were applicable in Britain by 1st January  1900. These were laws that we used when we were colonised by Britain. The laws applicable in Britain were also applicable in Nigeria.
2. Nigerian Legislation: This is the most important of the sources of Nigerian law. This is because it is Nigerian legislation that gives life to other sources of law. It is the pillar upon which the Nigerian legal system rests. It consists of the exclusive list, concurrent list and  residual  list.
3. Case Laws: Summarily, these are laws that are developed by the courts and become binding according to the principle of stare decisis/judicial precedent.
4. Customary law: These are the laws of the indigenous peoples of Nigeria prior to the advent of the colonialists. However, they are only applicable in civil circumstances. The Customary Criminal law has been abolished by various statutes like the Penal Code and Criminal Code.
5. Delegated Legislation: This is legislation made by other bodies that are not the legislature. However, before this can be valid, the power to make these laws has to be vested in such person/body by the legislature.
Due to the constraint of time and space, I shall only be examining Received English Law, Nigerian Legislation and Case Laws

THE 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. This was seen in the case of Labinjoh vs Abake where the application of the Infant Relief Act was rejected because there was already a local legislation that covered that area. S.32(3) allows for the alteration of the imperial laws in order to make it applicable to the Nigerian situation. For example, where England is used, it would be replaced with Nigeria, when the British currency is used it would be replaced with the Nigerian currency and so on. 

NIGERIAN 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 are 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.

FORMS OF LEGISLATION

Legislation can be in form of ordinances, acts, laws, decrees or edicts. Ordinances are laws made by the federal legislature before 1st October 1954. Acts are laws made by the National Assembly which is made up of the House of Reps and the Senate. Laws are legislation made by a State House of Assembly. Decrees are laws made by the federal military government while edicts are legislation made by state military governments.
It should be noted that for any legislation to be valid, it should originate from the appropriate authority. During the civilian regime, it is the National Assembly or State House of Assembly. In the military regime, it is the Federal Military Government and State Military Government.

DIVISION OF LEGISLATIVE POWER

These are divisions of legislation during a civilian regime. They are divided into:
• Exclusive List: These are laws which can be made only by the federal legislature.   S4.(2) & (3) CFRN 1999(as amended). It is located in pt 1 2nd schedule.
• Concurrent list: These contain items that are within the legislative competence of the State House of Assembly and federal legislature. S.4(4)(a) & S.4(7)(b) CFRN 1999 as amended
• Residual list: These are items that are left solely for the states to legislate upon. It should be noted that there is not an item designated ‘Residual List’ in the constitution. However, it is implied from the constitutional provisions. This is due to the fact that S.4(7) CFRN 1999 provides that the State House of Assembly can legislate on matters that are not contained in the exclusive list and but they can legislate on matters in the concurrent list. Thus, by implication they can also legislate on matters that are not in any of the lists.

THE SUPERIORITY OF NIGERIAN LEGISLATION TO OTHER SOURCES

Nigerian legislation is the most important source of law because it is through Nigerian legislation that other sources of law are validated into the  Nigerian jurisdiction. This can be seen in S.32 interpretation acts LFN 2004 which has to make sure that the Received English Law is accepted as law in Nigeria. Also, S.27(1) of the High court of Lagos law validates customary law.
Also, Legislation takes life from other sources of law. For example, it abolished some customary laws that dealt with slavery, witchcraft, trial by ordeal etc. For example S.207 to 211 of the Criminal Code abolishes witchcraft and trial by ordeal
It can also modify other sources .  It can also abolish customary law indirectly. For example, S.3 of the Legitimacy Act modifies the Yoruba law of acknowledgement. It says that a child is not legitimate until the mother is married, however, the Yoruba customary law says that as long as the child is acknowledged by the father, he is not a bastard. Also, in the case of Labinjoh vs Abake, it was declared that an indigenous law indirectly nullified the Infant Relief Act which is not a Nigerian legislation but a statute of general application.

CASE 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. 
With all these, can it then be contended that judges make law? Yes, by all means, however, their law is not legislation because it wasn’t passed by the National Assembly. Also,judicial precedents can either be binding or persuasive. Decisions made by courts of higher jurisdiction are binding on courts of lower jurisdiction. However, decisions by courts of co-ordinate jurisdiction are persuasive in most instances except in some instances at the Court of Appeal.

FORMS OF JUDICIAL PRECEDENT

Judicial precedents may be:
• Original precedent: This is when the decision given by the judge is a new decision in which there are no previous similar cases. An example is the case of Carlill vs Carbolic smoke ball co where an original precedent as related to offer was established.
• Derivative precedent: This is where the case at hand simply extends the existing rule analogically to cover a new situation.
• Declaratory Precedent: This means the law simply declares the existing rules. What it does is to re-echo the existing rule to what is on ground. It helps to give weight to the precedent and invests it with greater authority than it would have possessed if it stands alone. It also serves as a guide when it is not possible to get to the original judgement. Declaratory precedent is very important because it is through declaratory precedent that some decisions are weeded out. For example, if there are two conflicting original decisions, it is the one that is re-echoed by declaratory precedent that would stand the test of time. The other decision would be weeded out of the judicial system because it would be weaker.
In conclusion, it should be noted that without the hierarchy of courts and an efficient law reporting system, the principle of stare decisis will be impracticable.



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July 28, 2017

CLASSIFICATION OF OFFENCES


Offences are classified for the purpose of trial and punishment. They are also classified according to their nature in order to determine the gravity of the offence.
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.
For the purpose of  punishment, offences are classified into felony, misdemeanor and simple offences.
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.
Simple offences are those offences other than felony and misdemeanor. They are often punished with an imprisonment of less than 6 months.
It should be noted that in felony bail application is not ordinarily granted . In Misdemeanour, bail is granted at the discretion of the judge while in simple offences, bail is normally granted except if the court feels otherwise.
In order to arrest someone for a felony, a warrant of arrest should be provided. However, if the crime is committed in the presence of the officer, there is no need for a warrant.


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July 28, 2017

ELEMENTS OF AN OFFENCE


In considering criminal liability we are considered with the elements that must be proved in order to secure the conviction of a criminal offender. In the early days of criminal law, what entailed was a system of strict liability which is still applied in some jurisdictions. In those days, crimes were not only considered as an offence against the state but also as an offence against God.
Under this system, there were three features:
  • Strict accountability for the active conduct of a man.
  • Omission, not doing anything at all, could not constitute a crime.
  • There was severity of punishment and the intention of the offender was not considered as material proof.
The rationale for this principle is that a man intends the result of his action and should therefore be held accountable for his actions. To intend in law means to have in mind a fixed purpose to reach a desired objective.
Till the 15th century, the provision of the law was that the intention of a man could not be probed. This was based on the dictum of Bryan CJ: “even the devil himself knows not the heart of man”.
Subsequently, some petitions were made for the courts to temper justice with mercy. This made the common law courts to come up with the common law maxim: “actus non facit reum nisi men sit rea” which means that “an act does not render a person legally guilty until his heart is also blameworthy”.
From the above maxim, two principles evolved: actus reus(outward conduct) and mens rea(state of mind of the accused). These principles are fundamental requirements that have to be proved before they can be applied.
It is however noteworthy that none of these two principles were mentioned in the Criminal Code or Penal Code. This has further supported the views of some scholars who are of the opinion that the maxims are inconsequential.
In the case of R vs Miller (1983) AC, the presiding Justice stated:
“…My Lords it would I think, be conducive to clarity of analysis of the ingredients of a crime that is created by statute, as are the greater majority of criminal offences today, if we are to avoid bad latin and instead to think and speak about the conduct of an accused and his state of mind at the time of the conduct, instead of speaking of actus reus and mens rea…”
Despite the above reservations, the terms are still widely in use in Nigeria. This view is supported by numerous scholars. Clarkson and Keating specifically submitted:
“… We shall judge crimes in terms of actus reus and mens rea, we do this for two major reasons; that as long as one appreciates that these terms are no more than tools. They are tools that can usefully aid the clear exposition of the rules of criminal law.

Further, they have been so much part of the vocabulary of criminal law for hundreds of years and are still are. Many of the cases will be highly confusing if not totally meaningless without some understanding of the meaning of these terms…”
Consequently, it is safer to say that the above view is more acceptable. The use of the terms do not pose any risk to our understanding of criminal law, rather they aid our understanding of criminal law.

Actus Reus ( The physical element of an offence)
Actus reus may consist of an act, omission, a passive state of affairs or an initial act and/or some other factor. The actus reus of an offence is the external manifestation of human conduct that results in a forbidden act. It is simply the whole definition of a crime excluding the mental element.
Categories Of Actus Reus
The following are various categories under which acts are done to constitute the actus reus of an offence:
1. Action: The intention of a man, no matter how wicked cannot make him blameworthy until it is put into action. This is due to the fact that it is only God that can ascertain the true intention of a man’s heart.
However, it becomes a crime when he puts it into action, no matter how minute the action is. For example, a small movement can constitute the actus reus of assault, a slight movement of property can constitute the actus reus of theft and if A hit B on the face, the actus reus is the act of hitting B. 
Furthermore, Actus Reus may be analysed through the below principles:

1. The Human Conduct:  As stated above ...a small movement can constitute the actus reus of assault, a slight movement of property can constitute the actus reus of theft and if A hit B on the face, the actus reus is the act of hitting B. Thus, the human conduct is the act which is exercised through the contraction of muscles in executing the unjustifiable.

2. The Result of the Human Conduct (Causation): It is not enough to have another person's dignity being violated without consent inclusive of the exceptions provided for by our laws in effect, there must be proof that the human conduct which is energised has caused an undesired effect. For example: A shoots B with an activated gun and B dies. Hence, death as used in the above example is the result of the initial conduct of A which is the act of shooting.

 3. The Prohibited Act: The last thing to be analysed is whether the act of an accused is itself unlawful. Hence, an act may result to an undesired effect to a victim an yet not be a crime - a prohibited act. See for instance, section 53 of the Penal Code where it is clearly provided for that an act is not a offence, where a person being above the age of eighteen years old gives consent with knowledge to the act done or to be done expressly or impliedly, provided death is not the effect of such act.
2. Omission: An omission concerns itself with a failure to do a particular act when you are bound by law to do that act. The law does not enjoin you to be charitable and good but it prevents you from doing harm to others. An omission to do an act would not be a crime unless the doing of such act is a duty imposed by law.
Thus, if A refuses to give food to B and thus voluntarily causes B’s death, A would only be liable for murder if B is an infant dependent on him. If B is a beggar that has no claim on A except on the basis of humanity, A would escape liability.
In the case of Akanni & Ors vs State (1959) WRNLR the presiding justice stated:
“…the members of the crowd who stood by and watched the house in which they knew an old woman was locked in and being burnt and did nothing behaved disgracefully but that does not bring them within the provision of the law dealing with principal offenders as to be regarded as participants in the act of murder…”
There are four categories of omission under the law that would amount to a crime:
  • Where there is a statutory duty to act: For example, s.136 of the Penal Code makes it a crime to refuse to appear to a summons or notice requiring a person to appear at a particular place during a particular time.
  • Where there is a contractual duty to act and you refuse to act leading to the death or injury of others. For example, s.305A(1) of the Criminal Code provides that if a person whose contractual duty involves supplying electricity or water to a particular community maliciously breaks such contact,  and thus deprives the community of water or electricity, he has committed an offence.
  • Where there is a special relationship: According to s.300 Criminal Code if a person neglects to provide for another person who is dependent on him due to reason of age, sickness, unsoundness of mind, detention or any other reason, he would be responsible for any harm that results to the person’s life or health.
  • A person who voluntarily undertakes to act and refuses to act leading to danger to the health or life of a person; 305 Criminal Code if a person undertakes to do an act, the omission of which could be harmful to the life or health of others, the omission to do that act would result into an offence.
3. Passive State of Affairs: Actus reus may in some situations result from a state of affairs. Thus, an offence can be so without one seeing the physical act. By the provisions of S.405 & 406 of the Penal Code, it is an offence punishable with 6 months imprisonment for a person to be idle.
In the case of R vs Parsonneur, a French woman who illegally entered the UK was ordered to leave. Instead of complying, she went to Ireland where she was arrested and subsequently brought to London to be convicted of vagrancy, the equivalent of being an idle person.
4. Initial Act and/or Other Factors: Sometimes, initial acts are not sufficient to prove actus reus of an offence, there have to be other acts to complement it. A good example is in the offence of receiving stolen property, for the prosecution to establish this it has to first prove that the goods were stolen in the first place.
Another example is in the case of rape where in addition to proving penetration, there should be proof of absence of consent; S.282 Penal Code.
Mens Rea (The mental element of an offence)
Mens rea refers to the mental element required to be proved by the definition of the crime. By the definition of the crime, I am referring to the statutory provision that describes what the offence is. If the prosecution cannot prove this element, then their case fails. Also, mens rea differs fromcrime to crime and is contained in the definition of the crime.
The words that are commonly used to represent mens rea in the statutory definition of a crime include:
  1. Intention.
  2. Recklessness
  3. Knowledge
  4. Negligence
  5. Rashness
  6. Voluntariness
  7. Dishonesty
  8. Fraudulent 
1. Intention: In order to determine intention, it is viewed from three perspectives:
  • A consequence is intended if it is the aim and objective of the accused
  • A consequence is intended if it is the aim of the accused and is foreseen as a virtual, practical or moral certainty.
  • A consequence is intended when it is foreseen as as a probable result of the action of the accused.
In the case of Hyam vs DPP (1975) AC, the accused poured petrol into the letter box of her lover’s mistress’ house and then ignited it, knowing fully well that there were persons sleeping inside. This resulted in the death of the persons inside.
In court, she contended that she had no intention of causing death but had foreseen grievous bodily harm as a highly probable result of her action. The court rejected her argument for manslaughter and convicted her for murder.
Thus, in determining intent, there has to be proof that the consequence was a probable result of the act and was foreseen by the accused.
In the case of Ubani vs The State (2003) vol 18 NWLR pt 851, the accused and appellant, armed with machetes and guns, beat the  deceased till he fell and discharged excreta. As a consequence of this, he died.
On appeal the Supreme Court held that death or grievous bodily harm done to the deceased was, to the knowledge of the accused, a probable consequence of his action. Thus, the accused was held guilty.
See also: Idowu vs State (2000) vol 12 NWLR, Idiok vs The State (2006) vol 12 NWLR pt 913.
2. Recklessness: Recklessness occurs in a situation in which the accused knew that there was a likelihood of his action resulting into a crime but he still went ahead with the action. For example,by S. 59 of the Criminal Code if a statement, rumour, or report likely to cause public alarm is published, and there is a likelihood that such information is false, and it turns out to be false, the publisher would be penalised.
3. Knowledge: This is a state of mind in relation to the circumstances in which the act or omission occurred. In this kind of situation the words ‘knowingly’ or ‘consciously’ is used to prove a guilty mind. Knowledge can constructive, actual or willful blindness.
For example, S.319A of the Penal Code provides that whoever knowingly possesses stolen property or property reasonably suspected to be stolen and does not give a satisfactory account as to how it came into his possession shall be punished with six months imprisonment, fine or both.
4. Rashness: This is a type of mens rea that is related to gross negligence or recklessness and relates to acts done without premeditation.
5. Negligence: This is a situation in which the failure to perform a duty imposed on the accused results into a crime. For example, according to the provision of S. 138 of the Criminal Code,if a person who is in charge of confining a prisoner, negligently allows him to escape, he is guilty of a misdemeanor punishable with two years.
6. Voluntarily: According to the provision of S. 27 of the Penal Code, an effect is voluntarily caused if the perpetrator intended that his action would cause it, or if at the time of doing such act, there is a reasonable likelihood of such act being caused.
For example, if A sets fire to an inhabited house for robbery and causes the death of the occupants, he would be said to have voluntarily caused their deaths. This is regardless of the fact that he didn’t want to cause their death; if he knew it was likely to cause their deaths, it would be regarded as voluntary.
7. Dishonestly: This is used in a situation in which the an act is not done in good faith. Thus, S. 286(1) of the Penal Code provides that whoever dishonestly takes a movable property out of the owner’s possession without his consent, is liable for committing theft.


8. Fraudulently: This can be used interchangeable with dishonestly. For example in S.320 Penal Code, it is stated that anyone who fraudulently or dishonestly induces a person to part with his property is committing the offence of cheating.

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July 28, 2017

TRACING THE HISTORICAL BACKGROUND OF CRIMINAL LAW IN NIGERIA



Before the advent of the British to the area now known as Nigeria, there were different systems for the administration of criminal law. In the Southern part of Nigeria, the criminal justice system was administered using the local traditions of the society. In most parts of the North, the criminal justice system was regulated by the operation of Islamic law.
In the year 1861, King Dosunmu of Lagos ceded Lagos to British control and Lagos became a crown colony. Consequently, in the year 1863, the British introduced the criminal justice system which was applied in Britain to Lagos. In the protectorates, the indigenous laws were still applicable.
In 1904, after consolidating their hold over the North, the British introduced the Criminal Code. In the year 1914, the Northern and Southern protectorates were merged. This resulted in a situation in which three Criminal justice systems were in operation throughout the country: the English criminal law in Lagos, the 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.
This caused a lot of conflict especially between the Criminal Code and the Islamic Law. One of the major areas of contention was the fact that Islamic law allowed the infliction of punishment unrecognized by the Criminal Code. Islamic law also didn’t recognise provocation in order to mitigate a sentence of death to manslaughter.
In an attempt to resolve this conflict, S.4 of the Criminal Code was amended. The section initially read thus:
“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 quashed 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 discontent 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 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 Kano Native Authority vs Fagoji (1957) NRNLR and 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 criminalisation 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.


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July 28, 2017

The Basic Concepts of Criminal law



The fundamental characteristics of a crime is that it is an act that has been considered injurious and sufficient to warrant punishment by the society. In administering criminal justice, there are certain basic underlying principles that have to be followed. These principles are put in place in order to curb arbitrariness in the criminal justice system and to protect the criminal from being denied common benefits of natural justice.
The following are some of the important basic principles of criminal law:
No Act is a Crime Except is so Stated
The first principle to be considered is the one that posits that no act would be regarded as a crime unless it has been pronounced so by a statute. This is encapsulated in two common law maxims:
  • Nullum crimen sine lege: This maxim interprets to mean that “no act is criminal except that defined to be so by the law”.
  • Nulla poene sine lege: This maxim means that “no citizen can be made to suffer any punishment except in accordance with the law”.
The above can be aligned with A.V Dicey’s view that men are ruled by the law and the law alone. A man should be punished for the breach of the law and nothing else but the law.
The above is also supported by the provision of S.36(12) of the 1999 Constitution, which provides that no person should be convicted of a criminal offence except it is defined and the penalty is described in a written law. And a written law refers to an Act of the National Assembly, the law of a state, a subsidiary legislation or instrument under the provisions of a law.
Criminal Law Cannot Be Retroactive
The second basic principle is that criminal statutes shouldn’t be retroactive. This means that laws should not go back in time to hold people liable for actions carried out before the law is put in place. This principle is encapsulated by provision of S.36(8) of the 1999 Constitution.
It provides that no person shall be held guilty for an act or omission that did not at the time constitute a crime, and no penalty should be given to an act except the penalty that was in force at the time.
The Constitution also clearly provides in S.4(9) that no legislature shall have the power to make a law that has a retrospective effect.
Presumption Of Innocence
The third principle is the presumption of innocence. This is a very well established principle contained in both the laws of evidence and procedural law. It is contained the provision of S.36(5) of the Constitution which provides that every person that has been charged with an offence in a criminal case shall be presumed innocent until proven guilty.
Judicial Review
Another important principle is the power of an appellate court to quash the conviction of a lower court if it feels that there is a miscarriage of justice. This principle is well established in the doctrine of judicial precedence(Stare decisis), where decisions of courts of higher jurisdiction are binding on courts of lower jurisdictions. For example, it is provided in S.240 of the Constitution that the Court of Appeal has the right to hear appeal from the High Court and other courts of concurrent jurisdiction with the high court.
At the appeal, it should be established before the court that the trial court has erred in law or fact or in both law and fact. If this is sufficiently proved, the appellate court can quash the decision of the lower court.


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July 28, 2017

General Introduction and purpose of Criminal law



The Nigerian society is made up of a collection of different people that are diverse in a lot of respects. In the course of the daily interactions between these peoples, some people intentionally or inadvertently step on the toes of some others. In order for peace and order to be maintained in the society, redress has to be put in place to check the excesses of the defaulting party(s).
It is on this premise that criminal law has to be put in place by the government in order to regulate the actions of citizens towards each other or to the government and vice versa.

Different Definitions of Criminal Law

As with most other concepts in law, there is no universally accepted definition of criminal law. However, all definitions of criminal law must state that it is a set of rules, it prescribes offences and provides the punishment thereof.
Criminal law can be defined as a codified set of rules that control and regulate certain acts which are criminal in the society. It is also defined as an aspect of law that classifies certain kinds of behaviours as offences to the state. These offences don’t necessarily violate private rights and they are punishable by the state.
Criminal law can also be defined as the branch of law that concerns the citizenry more than any other branch of law. It controls the aspects of human behavior that concerns relation between the citizen, his neighbour and the state.
It is arguable that criminal law is selective. This is because it punishes only some kinds of human conduct and this is usually subjective. This means that some acts that are considered crime in some areas might not be considered so in the criminal law of another.  A good example is that of adultery. Adultery is considered as a crime in the Northern part of Nigeria; s.387 and 388 Penal Code. In the Southern part, it isn’t considered a crime.

What Is A Crime?

In Criminal Law, the most important subject matter is the crime. The main purpose of criminal law is to curb crime. What then is a crime?
A crime can be defined as an anti-social behavior that falls within the general disapproval of the state or the society. It can also be understood as an act or omission which is considered grievous by the society in order to warrant being punishable by the laid down set of rules.
A crime can also be understood as a breach of rules that leads to the accusatorial procedure controlled by the state and is liable to punishment.
To give a juristic approach to the definition of crime, it has been defined by Okonkwo and Naish as “those breaches of the law resulting in special accusatorial procedure controlled by the state and liable to sanction over and above compensation and cost”.
It has also been defined by Richard Quinney in his book The Social Reality of Crime as “human conduct that is prohibited by authorized agent in a politically organised society.”
Crime has also been defined in the case of R vs Taylor as an act committed or omitted in violation of public law either forbidding or commanding it.
Crime has also been defined by S. 2 of the Criminal Code as an act or omission which renders the person doing the act or making the omission liable to punishment under this code, or under any Act or Law.
It should be noted that an act is not considered a crime if it is not contained in a written law; S.36(12) of the 1999 Constitution, S.11 Criminal Code.

The Aims And Objectives Of Criminal Law

There are certain reasons for the institution of criminal law in any given society. They are:
1. Preservation of Life: The preservation of life is one of the foremost objectives of law in general and criminal law in particular. Life is preserved by criminal law through punishment for crimes like homicide; s.220 Penal Code(PC), assault;s.264 Penal Code, physical violence, manslaughter; s.317 Criminal Code(CC) and so on.
2. Preservation of Property: The property of an individual is undoubtedly protected by criminal law from unwanted destruction, interference, dishonest dealing by unauthorized persons etc. Criminal law achieves this through the punishment of crimes like theft; s.286 PC, embezzlement, criminal trespass; s.342 PC etc.
3. The Exigencies of Good Governance: In order to ensure good governance, certain acts are punishable by the criminal law. Examples of these kinds of acts include acceptance of bribe by public officials; s.98 CC, resisting lawful arrest, misappropriation of public funds and so on.
4. Protection of the State: Some acts are also prohibited by criminal law in order to protect the state. Some of the prohibited acts include treason; s.37 CC, treasonable felony, sedition; s.50 CC and so on.
5. Protection of Public Tranquility: The preservation of the sanity of the society is also under the purview of criminal law. For example, public nuisance is a crime according to the provisions of s.234 of the Criminal Code. This is in order to help in preserving public tranquility.
6. Protection of Morality: Criminal also helps to ensure that the values of the society are not eroded over the passage of time. This is accomplished by the prohibition of some acts that are considered immoral. Some of them are adultery; s.387 PC and prostitution; S.405(1)(d) PC.


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