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Vol. 2 No. 1 (2023)

Articles

Analysis of some basic underlying principles in the Nigerian criminal law

Published 2023-02-20

  • Akuchie Henry A

Akuchie Henry A
Associate Dean & Associate Professor, Department of Law, College of Law, Gregory University, Uturu, Abia State, Nigeria

Abstract

As stated by Lord Kenyon in the maxim, “It is a principle of natural justice and our law that actus non facit reum nisi mens sit rea-the intent and the act both concur to constitute the crime. The purpose here is to see if by any stretch of interpretation, the elements of an offence namely a physical act and a state of mind known as actus reus and mens rea in English law are truly covered by sections 24 and 25 of the Nigerian Criminal Code. First, of all, it is pertinent to analyze fully the extent of actus reus and mens rea in English law. There have been great debates in many jurisdictions as to what level of physical and mental state an accused person must possess for him/her to be held criminally responsible for his/her act or omission. Is culpability a function of purpose, knowledge, recklessness or negligence? Or would one ever be considered strictly liable for an act or omission of these physical and mental states? This issue, no doubt, boarders on the relevance of the English common law doctrine of mens rea and actus reus. However, in Nigeria, section 24 together with section 25 seems to cover the field of the mens rea requirement and a lot more. Yet, it is discovered that lack of comprehensive study and understanding of the Criminal Code provision had led to much judicial misapplication. Be that as it may, the thrust of this paper is to analyze the effect of section 24 on criminal liability with regards to the problem of concurrency of the physical and mental elements of a crime in southern Nigeria which is the specific territorial jurisdiction in which the Code operates.

Keywords

punishment, imprisonment, retribution, misdemeanours, aggravated

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References

  1. Smith JC, Hogan B. ‘Criminal Law’7d. Ed. (London: Butterworths), 1992, p4.
  2. Ibid.
  3. Ibid. For an assessment of the claim as to whether crimes are simply moral wrongs see Chapter 11 of Njoku, F. O. C: ‘Studies in Jurisprudence: A Fundamental Approach to the Philosophy of Law’, (2001, 2007).
  4. Okonkwo CO, Nash. ‘Criminal Law in Nigeria’ 2d. Ed. (London: Sweet and Maxwell), 1980, 19.
  5. 9 ENLR 152, 1965.
  6. Smith JC, Hogan B. ‘Criminal Law’7d., 1992, p5.
  7. 6 WACA 197, 1940.
  8. “Sentencing for Rape”. In State v Bolivia, the prisoner took two girls who were new in town and making enquiry as to their destination in his car; he got on the way and under gun threat took the girls into the bush, had sex with each of them; moved further into the bush and had another round of sex with each. The Court held that he was a proper person to be removed from human circulation and sentenced him to imprisonment without an option of fine. Nigerian Law Journal. 1977-80:2:121.
  9. Ashworth A. ‘Principles of Criminal Law’, 2d. Ed, (Oxford: Clarendon Press), 1995, p1.
  10. Section 320 Criminal Code, where attempt to murder is life imprisonment, punishment for murder is death, section 319(1).
  11. Smith JC, Hogan B. ‘Criminal Law’7d., 1992, p5.
  12. Ibid.
  13. Ibid. 1-2.
  14. NRNLR 54, 1963.
  15. Curzon JC. ‘Jurisprudence’ (Estover: Macdonald and Evans Limited), 1979, 42.
  16. Smith JC, Hogan B. Criminal Law 7d., 1992, 2.
  17. AC 310 at 324, 1931.
  18. Ashworth A. ‘Principles of Criminal Law’, 2d Ed., 1995, p2-3.
  19. Ibid. 3.
  20. State v Innocent Mbagwu and 3 Others. 2 ECSLR 645, held that conspiracy as a distinct and separate offence which does not merge into the substantive offence committed, 1972.
  21. See Chapter II Parties to Offences, section 7 Principal Offenders (Nigerian) Criminal Code Act Chapter 77 Laws of the Federation, 1990.
  22. Smith JC, Hogan B. Criminal Law 7d. 3. See also section 7 Criminal Code sections 85, 87, 89 and 90 Penal Code.
  23. Smith JC, Hogan B. Criminal Law, 7d., 3.
  24. Ibid., 3-4.
  25. Andrew Ashworth. Principles of Criminal Law, 2d., 26.
  26. Hart HLA. Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968, 227-228.
  27. Ibid., 228.
  28. Ibid., 229.
  29. Sections 24, 25, 26, 28, 29, and 30 Criminal Code Act Chapter 77 Laws of the Federation, 1990. Read also S23 CC.
  30. Sections 43, 45, 48, 49, 50, 51 and 52 Penal Code Chapter 89 Laws of Northern Nigeria, 1963.
  31. Provisions of Children and Young Persons Act.
  32. Hart HLA. Punishment and Responsibility: Essays in the Philosophy of Law, 229.
  33. Ibid.
  34. Stuart Hampshire, Hart HLA. ‘Decision, Intention and Certainty,’ in Mind. 1958;67:8.
  35. Jeremy Bentham. Principles of Morals and Legislation. New York: Prometheus Books, 1978, Chapter 13.
  36. Ashworth A. Principles of Criminal law, 2d., 27.
  37. 1 ACLR, 168 at 171, 1998.
  38. John Stuart Mill. On Liberty. London: Penguin Books, 1982, 141.
  39. Ibid., 141-142.
  40. Ibid., 143.
  41. For an elaborate treatment of paternalism, see F. O. C. Njoku, Philosophy in Politics, Law and Democracy. Owerri: Claretian Institute of Philosophy, 2003.
  42. Jeremy Bentham. Principles of Morals and Legislation. New York: Prometheus Books, 1978, Chapter 13.