History and Sources of Nigerian Criminal Law

Essentially, Nigerian criminal law derives from English common law but the present relationship between those two systems of law has tended to become confused. For several centuries, the basis of English criminal law has been the common law, supplemented by statutes but mainly found in cases which form the primary source of all Nigerian criminal law is Nigerian legislative enactment.

Cases, whether Nigerian or English may help in the understanding and interpretation of the statute law but nevertheless the proper starting point in any case is the relevant legislative provision.

There are two categories of statutes in Nigeria relating to criminal law.

1. There is a host of Federal and state statutes defining what may be described as “technical offences”. These are intended to regulate, by the threat of penalties, the conduct of people in all walks of life.
2. The second category consists of criminal statutes, namely the two codes; The Criminal Code, which applies in the southern states and The Penal Code in the Northern states.

History of Nigerian criminal law

Prior to the arrival of the British Criminal Law, a large number of systems of criminal law existed in Nigeria. The advent of the British did not at first alter the prevalent situation so much with the development of centralized government, however, some need began to be felt by the British administration for a clearly worded, concise and unified set of criminal principles to be applied in British courts. The common law of crime was unsuitable because it was, and still is, relatively complicated and not easily ascertainable.

In 1904, the Lugard Administration in Northern Nigeria introduced by proclamation, a criminal code whose purpose, the preamble stated, was to declare, consolidate and amend the criminal law. It was extended in 1916 to the whole century after the unification of Nigeria in 1914.

The application of the Northern criminal code was at first strictly limited and thus even after 1916, most criminal cases in Nigeria were still governed not by the code but by native law and custom. The code was seen merely as a special variety of native law and custom.

Therefore, there were about two or more systems of criminal law existing side by side in the same geographical area and it created a dilemma, especially in Northern Nigeria where Moslem Law, as interpreted by the Maliki School was firmly entrenched.

These two laws were in contrast in a number of areas but the most frequent cause of friction was the concept of provocation which is recognized by the criminal code as capable of reducing murder to manslaughter, but which was not admitted in Maliki Law.

The punishment for manslaughter varied under these two laws.

Maliki law was an integral part of the Northern Moslem’s way of life, and there was no particular desire to undermine its authority, nor was it politic to do so in any but a gradual way the process of gradual change was the solution adopted.

There were a number of reasons why the adoption of the criminal code without qualification was not acceptable. The most notable being that the criminal code was not drafted for a Moslem community and had incurred odium in the North.

Also, the demands of the traditionalists could not be ignored at the time due to the political situation of the country.

In 1933, the legal system was overhauled and section 4 of the criminal code ordinance was amended and thus it appeared to do away with unwritten customary criminal law.

In the case of Gubba v. Gwandu N.A in 1947 it was the view that the 1933 amendment intended virtually to sweep away criminal nature law and custom except with respect to the few offences not covered by the code.

But the various reports of the 1949-52 Native Courts Commission of Inquiry undertaken by Commissioner Brooke clearly show that this view was wrong. The criminal code did not in every case create new offences but was codified English law for some of which native law and custom had its own offences and penalties.

N.B The instructions, however, laid it down that while a native court may charge a person for offences under native law and custom, the punishment which may be inflated where the offence is also one under the Criminal Code must be in accordance with the punishments laid down in the Criminal Code.

N.B By 1957, after the leading case of Maizabo v. Sokoto N.A the position was settled that the correct law was that native or customary courts were empowered to apply customary criminal law, even if there was a provision in the criminal code on the subject. But they must not pass a sentence in excess of the maximum that could have been imposed if the case had been tried under the criminal code.

The code which eventually emerged to displace the criminal code in 1959 was the penal code law. It was based on a code which had been working successfully in a Moslem community (Lade of the Sudan) and had strong link that English law. The Northern Nigeria Penal Code represents a compromise between the reformers and traditionalists but reference to native law and custom is not entirely excluded.

The Northern legislature did not possess power to create certain offences e.g treason, sedition etc. these were enacted by parliament as an addendum to the penal code. In the rest of Nigeria, traditional criminal law was much less firmly entrenched than in the North and the decision was taken at the 1958 constitutional conference to abolish customary criminal law in Nigeria altogether. Thus the following section was written into the 1959 Bill of Rights, and became Section 22 (10) of the 1963 constitution;

No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law.

In the North, the abolition of customary criminal law is made clear by section 3(2) of the Penal Code Law which states that:

No person is to be liable to punishment under any native law or custom.

The dual system of customary and statute criminal law therefore now replaced by a dual code system. Traditional offences are preserved only in so far as they are contained in an enactment.

The relationship between the two codes

Each code covers offences committed within the territory to which it applies and only within that territory. Difficulties could arise, however, where an offence comprises several elements, some but not all of which occur outside the territory. The criminal and penal codes contain identical provisions in sections 12(a) and 4 respectively, for dealing with problem.

• If the initial act or omission of such an offence occurs within the territory covered by a code, and other elements occur outside, then the committer is liable as if all the subsequent elements had occurred within the territory.
• But a man has a defence if he did not intend his initial act to have effect within the territory in which it was done.
• If the initial act or omission of the offence others outside the territory, but other elements other within, and the committer then enters the territory, he will be liable as if the initial act had occurred within the territory.

N.B These provisions do not apply where the only material event occurring in the particular territory is the death of a person whose deal was caused outside the territory at a time when he was outside. See the examples cited in Okonkwo & Naish.