OGUNNOIKI: To What Extent can a Person be Liable for the Criminal Act of Another under the Nigeria Criminal Jurisprudence? A Critical Examination of Section 8 of the Criminal Code

TO WHAT EXTENT CAN A PERSON BE LIABLE FOR THE CRIMINAL ACT OF ANOTHER UNDER THE NIGERIA CRIMINAL JURISPRUDENCE? A CRITICAL EXAMINATION OF SECTION 8 0F THE CRIMINAL CODE*

Abstract The general principle of criminal law in Nigeria is predicated on ‘No liability without fault,’ and on personal liability. Section 7 of the criminal code gave credence to this by listing out the principal offenders in an offence and the roles each of them must have played in the act or for them to be found guilty of such an offence. Such offenders will be liable to the same consequences in all respects of the offence.1 This shows that an individual must have participated in an offence before he could be found liable. Thus, an individual is responsible for his own conduct. However, in section 8 of the Criminal Code,2 it states that ‘where two or more persons form a common to prosecute an unlawful purpose in conjunction with 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.3 This indicates that when an offence is committed in the continuation of that unlawful purpose with a view to its completion, it is immaterial whether they all commit the of the offence or not. The law shall deem them all guilty, thereby making a person liable for the offence of another. This gives rise to the ‘Doctrine of common purpose’.4 This paper critically examined the fairness of section 8 of the criminal code, thereby bringing into common parlance the oft-quoted maxim ‘Not only must justice be done, it must also be seen to be done.5 It examined the approach of foreign jurisdictions like South Africa, Canada and English laws as it regard common purpose. It went further to examine the doctrine of vicarious liability which is a liability for the acts of another in a civil case.6 The constitutionality of this common purpose was critically examined, using the decision of the Supreme Court in the Nigeria case of Alarape v State7 and several other cases. This paper concluded by suggesting proposals for the reform of the law. Doctrinal approach was adopted in this research.

Keywords: Criminal Liability, Criminal Act of Another, Common Purpose, Criminal Code, Nigeria

1. Introduction: Origin of Common Purpose The origin of the doctrine of common purpose can be traced back to the Transkei Penal Code which states that ‘If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by anyone of them in the prosecution of such common purpose, the commission of which

*By Kemi OGUNNOIKI, PhD Student, Faculty of Law, Nnamdi Azikiwe University, Awka. Nigeria 1 Criminal Code Act CAP C38, LFN 2004 s.7 2 Ibid s.8 3 ibid 4 R v Macklin, Murphy and others (1839)2 Lewin 225 ER 1136 5 R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 6 J Smith, ‘Criminal Law’ (10th edn, UK: LexisNexis, Reed Elsevier (2002) p.192 7 Alarape v State, (2001) 5 NWLR Pt.705) p.79 SC

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offence was, or ought to have been known to be a probable consequence of the prosecution of such common purpose. Section 8 of the Criminal Code 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 in conjunction with 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’8 The analysis of the above section discloses the following requirements that must be present before conviction could be sustained. These are: 1) There must be two or more persons 2) They must form a common intention 3) The common intention must be towards prosecuting an unlawful purpose with one another. 4) An offence must be committed in the process 5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose9

One could therefore infer from Section 8 that where A and B associate in a joint unlawful enterprise, the act of one person is attributed to the other in virtue of their common purpose where such an act falls within the scope of their common design.10 Hence all the parties will get exact sentence from the court as though they all jointly committed the . One of the most puzzling doctrines in criminal law is the doctrine of common intention. The problem arises in this scenario: two or more persons agree to commit a particular crime, (the primary crime), in the course of carrying out the particular crime, another crime (the secondary crime) is committed by any member of the group (the actual group). The puzzle is: to what extent would the rest of the group (the common intenders) be liable for the secondary crime? Under the Nigeria Criminal jurisprudence, what is the justification for this and how equitable is it? Is there any need for a review of this law so as to ensure justice is actually done to everyone including the defendants? Is there any fair play in defendants in their various roles in the offence? How could this affect the future of criminal jurisprudence?

2. Justification for Section 8 of the Criminal Code

The Doctrine of Common Purpose This is a principle of law which originates in English case law. This principle of common purpose could be defined as the attribution of criminal liability to a person who undertook jointly with other person or persons to conduct a crime even though only one of the parties in the joint enterprise may have committed the criminal conduct itself.11That is, if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by

8 Criminal Code Act CAP C38 LFN 2004, Section 8 9 (1987)3SC 152 1987 para A-E (1987) p 12 10 D. Unterhalter The Doctrine of Common Purpose: What Makes One Person Liable for the Acts of Another 105 S.African L.J 671(1988)p 671 11 accessed 20th June 2019

Page | 98 OGUNNOIKI: To What Extent can a Person be Liable for the Criminal Act of Another under the Nigeria Criminal Jurisprudence? A Critical Examination of Section 8 of the Criminal Code each of them is in law, done by all. In essence each person is liable for the actions of others which are committed in pursuance of the common purpose.12 The doctrine of common purpose is to bring home criminal liability to the variety of participants in a joint criminal enterprise. Common purpose becomes justifiable as a necessary evil for crime control where joint criminal activities take place.13 However, those that undergo joint punishment under this doctrine do so due to the unlawful conduct of others over which they often had no control.

Nigeria Cases

Alarape v State14 Members of a vigilante group were on night patrol duty when they sighted some people suspected to be thieves. The group raised an alarm, causing the suspected thieves to run in different directions. Other vigilante groups joined in the chase. A gunshot was heard and it was discovered that the deceased who was a member of the vigilante group was shot on his chest and died. The matter was reported to the police, who effected the arrest of all the four appellants. The before the trial court was that the four accused persons went to recover certain goods they stole the previous night and was hidden somewhere in the bush where the vigilante groups were securing. After removing the stolen properties and were on their way back, they were sighted by the Vigilante group who raised alarm and gave them hot pursuit. It was discovered that the first appellant collected a gun from the 4th Appellant and shot the deceased at the chest. Relying on the provisions of sections 7 and 8 of the Criminal Code, the learned trial judge, Oguntade.J was of the view that there was the presence of common intention of the four appellants. According to the learned Judge, the four appellants, Asimiyu Alarape, Adebayo Kehinde, Olorunwa Adubuleja, and Aliu Rasaki had a common intention to remove the goods which they had stolen and hid where the vigilante were securing. They further manifested this common intention by arming themselves with a gun which one of them eventually used in order to recover the goods by any means including force and escape any lawful arrest. Learned Judge was of the view that all the four appellants must take full responsibility for the death of the deceased. The trial judge held that there is no doubt about the common intention of the four accused persons to remove the goods which they have stolen the previous night, which was kept in the area where the deceased and the other vigilantes were watching. In other to achieve their common intention, they went there armed with a gun which was used by one of them to make good their escape from the scene of crime. According to the trial Court, it does not matter that the fatal shot was fired by the 1st accused. He therefore held that upon the totality of the evidence before him, the deceased had been unlawfully killed by the four appellants, hence guilty of the offence of of Safiriyu Oshineye and were accordingly sentenced to death.15 Their appeal to the Court of Appeal was dismissed and their death sentence was further affirmed. Dissatisfied, the appellants approached the Supreme Court. The issues for determination before the Supreme Court among others include:

12Maree MC, The doctrine of Common Purpose in Criminal law 88, S African L.J (1997)227 13Grant J , Common Purpose: Thebus, Marikana and unnecessary evil 2014, SAJHR (1).P14 14 Alarape’s case supra 15 Alarape’s case supra

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i)Whether the Court of Appeal was not wrong when it affirmed the conviction of the appellants for murder when there was certainty as to who was actually responsible for the gun shot that killed the decease.

ii) Whether the Court of Appeal was not wrong when it affirmed the conviction of the 4th appellant for murder on the ground that he formed a common intention with the 1st ,2nd and 3rd to prosecute an unlawful purpose when the prosecution in fact adduced no evidence, direct or circumstantial, to establish such a common intention.

The Supreme Court cited section 8 of the Criminal Code which provides thus: 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 a 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.16

Another provision of the law provides thus: When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in a way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. In either case, the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.17

Eso JSC analysed the provisions of section 8 of the Criminal Code and disclosed that the following requirements must be present before conviction could be sustained. These are: 1) There must be two or more persons 2) They must form a common intention 3) The common intention must be towards prosecuting an unlawful purpose with one another. 4) An offence must be committed in the process 5) The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose18

The Supreme Court posed a question thus: ‘what bearing has the common intention to remove already stolen items with the case of murder?’ In his decision, Iguh JSC reiterated that though he agreed with the lower courts that the appellants had common intention to collect their stolen goods from where they had kept them, and in order to achieve their common intention, they went there armed with a gun which was used by one of them to aid their scape. Yet, the Supreme court disagreed that the 2nd, 3rd and 4th accused persons had a common intention to

16Criminal Code Law of Ogun State, Section 8 17 Ibid Section 9 18 Akinkunmi &ors v State (1987)3SC 152 1987 para A-E (1987)p 12

Page | 100 OGUNNOIKI: To What Extent can a Person be Liable for the Criminal Act of Another under the Nigeria Criminal Jurisprudence? A Critical Examination of Section 8 of the Criminal Code kill the deceased. The Court held ‘I cannot safely say that they had common intention to kill the deceased who as revealed by evidence, they did not see before the gun was fired by the 1st accused person. The gun was never aimed at any particular person or even at particular vigilante group! A shot in the air? May be. And if the 1st accused had to collect the gun first from the 4th accused, that in my view goes to show that they had no common intention to kill anyone. The intention to kill must have been that of the 1st accused only and which should not be imputed to other accused persons.’19 Iguh JSC further stressed that: ‘Although common intention may be inferred from circumstances disclosed in the evidence and need not be express agreement, a presumption of common intention should not be too readily applied’.20 The Court was of the view that the death of the deceased was not carried out in concert by all the accused persons pointing irresistibly to common intention. Therefore, the court dismissed the appeal of the 1st accused (Asimiyu Alarape), his conviction and sentence reaffirmed while the appeal of the 2nd 3rd and 4th accused persons succeeded, the conviction and sentence passed on each of them set aside and were discharged and acquitted.

This paper absolutely supports the Supreme Court and disagrees with the decisions of the lower courts as it pertains to common intention. This paper agrees with the submission of the learned counsel to the appellants when he urged the Supreme Court to distinguish common intention from common object, and also where the crime committed is not related to the common intention of the accused persons, such a case should not come under section 8 of the criminal code. The paper asserts that the decision of the Supreme Court should be supported and emulated by all courts so as to minimise the harm that could come on persons through a wrongful application of section 8 of the criminal code in all joint trials.

Aikhadueki v State21 This is another decided case in Nigeria depicting the issue of common intention. In this case, PW2, Boniface Ozumba said he was travelling in his Nissan Sunny car with his brother in law, Christian Owerroma (the deceased) who came to his home to get married. On their way, they encountered a checkpoint along Orlu Road junction by Mgbidi. As they left the checkpoint, they realised they were being chased by some police officers in their Algon jeep. As they approached another checkpoint mounted by mobile policemen, the most senior officer in the Algon jeep, Inspector Uwadiegwu raised alarm that PW2 and Owerreoma were thieves. Both the policemen in Algon jeep as well as the mobile police started shooting at the vechicle. Pw2 decided to increase his speed, sensing danger to their lives. Unfortunately, both Pw2 and the deceased sustained severe injuries from the gun shots. They were taken to the hospital where the deceased was pronounced dead. All the Police officers involved were arraigned in the Court for the offence of murder. Among the issues before the Court is whether the Appellant and the other accused persons had common intention to commit an unlawful purpose when they shot at the vehicle conveying the deceased person. The accused persons claimed Pw2 and the deceased were presumed to be armed robbers because they refused to stop their vehicle for

19 Alarape’s case supra 20 Ibid 21 Aikhadueki v The State SC 225 (2011) https://www.lawonlinereport.com/corporal-bonny-aikhadueki-v-the-state accessed 20th June 2019

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search at the regular check point. The trial Court found them guilty of murder based on common intention as elucidated in section 8 of the Criminal Code and were sentenced to death. On appeal, the Appellate Court declared that the lower Court erroneously invoked Sections 7 and 8 of the Criminal Code in the instant case.

The Appellate Court cautioned that a presumption of common intention should not be applied to every case. The Court stated that there must be evidence before the Court to justify the inference of common intention, which was lacking in the instant case. Hence, the accused persons were discharged and acquitted.22 One could deduce from the above that though common intention as enshrined in section 7 and 8 of the criminal code is a legal ground to pronounce the same punishment for all involved in the perpetration of the illegal act, however, common intention should be explicitly proved to avoid miscarriage of justice. The extent of involvement of parties should determine the level of punishment. Anything short of this may amount to unjustly punishing one person wrongly for the offence of another.

Akinkunmi & Ors v The State23 This case was another examination of section 8 of the Criminal Code in ascertaining the extent at which a person can be held liable for the crime of another. In this case, the four appellants had a common intention to steal free roaming goats from the highway. This they did and the 1st appellant was the regular driver of the vehicle conveying the stolen goats. They were stopped by the anti-crime patrol team on the high way who stopped them for a search. At this stage the 2nd appellant took over the driving of the vehicle. The deceased and the witness ordered 2nd defendant to switch off the running engine of the vehicle but he refused. It was at this stage that the deceased entered the vehicle to bring out the objects but all of a sudden, the 2nd appellant drove off with the other appellants and the deceased. The shout from the deceased to let him come down was refused by the 2nd appellant. The body of the deceased was later found with a broken skull. The trial court found the four appellants guilty of common intention to commit the crime of murder and all were sentenced accordingly. However, the Supreme Court found that the 1st appellant lied when he falsely admitted to have driven the vehicle after the deceased had entered into it when he did not. He also lied when he admitted that a police man did not enter the vehicle. According to the court, though this was reprehensive, this only made him a perjurer but it should not earn him a conviction for murder. The court held that besides this reprehensible and incorrigible of the appellant, there is no evidence that the 1st appellant was involved in the of the goats to warrant his planning of escape in the manner executed by the 2nd appellant that resulted in the deceased being found with broken skull. There was also no evidence that the either appellants pushed the deceased out of the moving vehicle. The court reiterated that ‘one could not stretch evidence in a criminal case to look for guilt. Circumstantial evidence must be such that points irretrievably to the guilt of the appellant’. His appeal was therefore allowed, his conviction and sentence quashed. The Supreme Court also held concerning the 3rd and 4th appellants that there was a common

22 Alarape’s case supra 23 Akinkunmi & Ors v The State (1987)3 SC 152, 1 NWLR (PT 52) 602

Page | 102 OGUNNOIKI: To What Extent can a Person be Liable for the Criminal Act of Another under the Nigeria Criminal Jurisprudence? A Critical Examination of Section 8 of the Criminal Code intention to prosecute with one another an act of stealing goats. That satisfied the (1) to (3) of the analysis which are: 1) There must be two or more persons 2) They must form a common intention 3) The common intention must be towards prosecuting an unlawful purpose with one another.

However, the court stated that concerning the offence of murder was not in prosecution of the common intention to steal a goat but to escape unlawful arrest. The court held that there was no evidence to show that either appellant knew that the 2nd appellant would speed off with a police investigator in the vehicle. There was also no evidence to show that either of the appellants sanctioned the act of the 2nd appellant, before, during or after the act. According to Kayode Eso JSC who read the judgement, he said I am not satisfied that the murder of the deceased was a probable consequence of stealing the goat. The fifth ingredient has not been met’,(ie the offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose) hence the appeal of the 3rd and 4th appellants succeeded. In his contribution, Amagolu JSC threw more light on this and said ‘It is clear from the evidence adduced and from all the facts and circumstances surrounding, that the 2nd appellant took the spontaneous decision of driving away the vehicle with the deceased policeman in it, thereby dispossessing the 2nd appellant of the vehicle and reduced him to a mere passenger together with his conductor.

According to him, the 3rd and 4th appellants were neither consulted on this later independent decision nor was there evidence of anything said or done by them indicating their or acquiescence with the new turn of events. The Court held that it is better to err on the side of acquittal when facts presented in a case are in-conclusive towards a conviction or leave one with a margin of doubt. Therefore, the court allowed the appeal of 1st,3rd and 4th appellants in the persons of Adesujo Akinkunmi, Folajunmi Akinkiolie and Omotola Ayodele. Their convictions and sentences for murder based on common intention was quashed and replaced with a verdict of acquittal. But the appeal of the 2nd appellant, Iranola was refused and his conviction and sentence for murder upheld. The above is a clear submission that the issue of common purpose whereby a person could be held guilty of the offence of another must pass all the five ingredients as spelt out by law.

Abol Gyang & Anor v The Queen 24 The two accused persons went out together in the night with the intention to steal from the compound of the deceased. The 2nd accused had a knife. They were challenged by the deceased who suddenly knocked 1st accused person and held him down on the ground. In the ensuing struggle, the 2nd accused person who had run a short distance away returned and stabbed the deceased and both accused persons escaped. The Court held that 1st appellant went to commit felony with the 2nd appellant who had a knife which he subsequently used to facilitate their

24 Abol Gyang & anor v The Queen (1954) 14 WACA, 584

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escape. In essence, it was a case in which murder was committed by one thief to enable the other thief to escape. Common intention was inferred and both were found guilty of the offence of murder of the deceased and sentenced accordingly.25 The above is a clear evidence of a person being liable for the criminal act of another. This paper proposes a review of section 8 of the criminal code to minimise situations where a person is held liable for the offence of another as we could see from the decision of the Supreme Court in Alarape v State.

Foreign Law

S v Safatsa 26 In this South African case, six participants in a mob were charged with and later convicted of murder. The court found that each of the accused shared a common purpose to kill the deceased with a mob as a whole. All the accused associated themselves with the result of the common purpose and each of them had the requisite for murder. The court held in this case that there need not be a causal connection between the acts of every party to the common purpose and the death of the deceased need be proved in order to sustain a conviction of each of the participants.27 In his judgement, Botha JA stated: ‘These accused shared a common purpose with the crowd to kill the deceased and each of them had the requisite dolus in respect of his death. Consequently, the acts of the mob which caused the deceased’s death must be imputed to each of the accused’28 The question faced by the court is: Is it competent for a participant in the common intention or purpose to be found guilty of murder in the absence of proof that his conduct caused or contributed causally to the death of the deceased? The court held in this case that there need not be a causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved in order to sustain a conviction of each of the participants.29 This paper is of the opinion that the answer of the court to this question violates the required principle of prove beyond reasonable doubt in criminal cases.

S v Mgedezi 30 In this case, there was unrest in a mine compound where mine workers considered their leaders as informers. That night, some mineworkers raided the compound while chanting songs of death of these leaders. Violence erupted and a room used by the team leaders set ablaze. The attack resulted in the death of four team leaders. The appeal court held that the absence of a planned attack and a causal link between the killing or injuring of victims, an accused person can still be held liable if the following prerequisites are met: 1) He must have been present at the scene of where the violence was committed 2) He must have been aware of the assault on the victims

25 Ibid 26S v Safatsa 1988 (1) SA 868 pp 34 27 Ibid p 901 28 Ibid 29 Ibid 30 S V Mgedezi 1989 1 SA 687 A

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3) He must have intended to make common course with those who actually perpetrated the assault. 4) He must have manifested his sharing of a common purpose with the perpetrators of the assault by performing some acts of association with the conduct of others. 5) The requisite mens rea must be present or he must have for-see the possibility of their being killed and performed his own act of association with as to whether or not death was to ensue31

Scholars have argued that the culpability based on common purpose in some instances ‘Casts the net of criminal liability too widely.’32

Canadian Criminal Code Canadian Criminal Code33 provides that: Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them , in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

English Position The earliest trace of the doctrine of common purpose was in the English case of Maclin, Murphy and others.34 Judge Alderson B stated in this case thus: ‘It is a principle of law, that if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all.’35 This was further demonstrated in the English case of R v Swindall & Osborne36 where in a race among two cart drivers, a pedestrian was killed and it was unknown which driver had driven the cart that killed the pedestrian, the court held that since they both encouraged each other in the race, it was immaterial which driver was responsible for the death of the pedestrian. They were both held liable for murder.

All these illustrations both local and international pointed to the fact that cases where a person will suffer or held liable for the offence of another is not limited to Nigeria alone. Though various jurisdictions have their cogent reasons for upholding this doctrine of common intention or purpose which among others is to safe guard the society, however, the direction of the law sometimes may off tangent, missing its target, and subjecting innocent person to punishment. Hence, this paper proposes a review of the law where each person will be held accountable only for his own crime.

31 Safatsa’s case supra pp40 32 N Boister, Common Purpose: Association and Mandate’ SACJ 1992 2 SAS 167 33 Canadian Criminal Code, Section 21 (2) 34 R v Maclin, Murphy and others, (1839)2 Lewin 225 ER 1136 35 Ibid 36 R v Swindall and Osborn (1846) 2 Car.& K.230

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4. Vicarious Liability Besides section 8 of the Criminal Code, another situation where a person can be liable for the offence of another is through vicarious liability. Vicarious liability is the general rule in the law of which makes a person or an incorporation liable for the offence of another. For instance, an employer is held liable for all acts of his employee performed in the course of his employment.37 In Lloyd v Grace, Smith & Co,38 a solicitor’s managing clerk, without the knowledge of his employer, induced a widow to give him instructions to sell certain property, to hand over title deeds and to sign two documents which were neither read over nor explained to her. The documents were actually a conveyance to the clerk of the property, of which he dishonestly disposed for his own benefit. It was held that since the clerk was acting within the scope of his authority, his employer was liable.39 However, it was made explicit in the case of Huggins40 that in criminal law in Nigeria, an employer is generally not so liable. In the above case, Guggins (defendant was the warden of a prison. Huggin’s deputy, Barnes, placed a prisoner, Arne, in a cell situated on the prison’s common sewer. Thereafter, Arne died from living in the unhealthy conditions. Barnes and Huggins were indicted for murder. At trial, evidence showed that Huggins had no knowledge of, nor consented to the confinement of Arne in the unhealthy cell. The Court convicted Barnes of murder and acquitted Huggins of the charge. In his Judgement Raymond CJ said:41 It is a point not to be disputed, but that in criminal cases, the principal is not answerable for the act of the deputy as he is in civil cases: they must each answer for their own acts, and stand or fall by their own behaviour. All the authors that treat of criminal proceedings proceed on the foundation of this distinction; that to affect the superior by the act of his deputy, there must be the command of the superior which is not found in this case.

We can infer from Huggins case that in criminal law an employer can be liable for the criminal act of his employee if he is a participant in the criminal act. However, in common law, exceptions to this are cases of , criminal libel and . In any of these, an employer can be held liable for his employee’s acts although he is personally, perfectly innocent.42

5. Arguments For and Against the Doctrine of Common Intention The proponents of the doctrine of common intention see it as an instrument of crime control through which joint criminal enterprise can be reduced. It was found effective in holding perpetrators of and their accomplices responsible for the commission of their crimes. Crimes committed by groups are considered more serious than those committed by single accused person.43 Scholars noted that the act itself is what is imputed and not the culpability

37 JC Smith, Criminal Law (10th edn UK: LexisNexis 2002) p192 38 Williams, CLGP Mens Rea and Vicarious Responsibility’ (1956)9 CLP 57 39 ibid 40 Rex v Huggins, Kings Bench, (1730) 2,Stra 883 41Ibid, p 885 42 JC Smith, Criminal Law, (UK:Tenth edn LexisNexis Ltd 2002) p.193 43 N Singh, The Doctrine of Common Purpose : A Brief Historical Perspective; The Common Purpose Doctrine Defined And A Focus On Withdrawal From The Common Purpose (2016) p23

Page | 106 OGUNNOIKI: To What Extent can a Person be Liable for the Criminal Act of Another under the Nigeria Criminal Jurisprudence? A Critical Examination of Section 8 of the Criminal Code of the one who actually carried out the act. The other participants’ liability is actually based upon his own culpability or intention. In consequences crimes, the prosecution need only prove that all participants agreed to commit the crime or actively associated themselves with the crime in question which is committed by one of the participants who acted with the required mens rea. If the State can prove that the latter participant actually caused the end result, then his actions are imputed to the other participants in the group. It is immaterial which particular participant caused the ultimate result.44 According to Snyman, ‘The crucial requirement is that the persons must all have the intention to murder and to assist one another in committing the murder. Once that is proved, the act of X, who actually shot and killed Y, is imputed to Z, who was a party to the common purpose and actively associated himself with its execution even though a causal relationship between his (Z’s) act and Y’s death cannot readily be proved. X’s act is then regarded as also that of Z.45

However, the doctrine of common intention appears to violate the rights of the victims, for instance, the right not to be discriminated against unfairly.46 The application of the common intention has the effect of treating all whom it includes as drones. It imposes liability on all persons within its scope without having regard to the actual act an individual actually did.47 Hence the question: ‘is this doctrine actually constitutional in light of its overreaching implications for participants in joint enterprise? In S v Thebus and anor,48 where a mob of people in their protest against the presence of drug dealers in their area, damaged the property of a reputed leader, Grant Cronje, leading to exchange of gun shots between the mob and the latter. In this cross fire, a little girl Crystal Abrahams was killed while two others were injured. Relying on the doctrine of common purpose, the trial court convicted the appellant for murder of the deceased. In criticising this decision of the court, the appellants opined that the main issues in Thebus case was that of fundamental dignity of those convicted. It was stated that it essentially de-individualises and dehumanises them by treating them in a general manner as nameless, faceless parts of a group. According to them, the doctrine of common purpose violates the right to freedom arbitrarily. It was argued that there are other ways in which a participant can be held liable for his actions. These include or incitement to commit the crime in question and in case of mob violence, could be held liable for public violence. Suggestions to increase the punishment for offences like conspiracy, incitement to commit crime or public violence to reflect strong condemnation of such acts as opposed to finding them guilty of the offence of murder and passing death sentence on the victims. According to Burchell: …appropriate weight to the degree of a participant’s participation in a common purpose in determining both verdict and sentence. It is arguable that the English concept of joint enterprise liability, based on findings that participants in a

44 J Burchell, Principles of Criminal Law ( 5th edn,Juta Cape Town, 2016)477 45 CR Snyman, Criminal Law (6th edn, Durban: Lexis Nexis 2008) 266 46 The Constitution of the Republic of South Africa 1996, s. 9 47 N Singh , n 43,p19 48 S v Thebus and Another, 2003, 6 SA 505 (CC)

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common purpose are accomplices, not co-perpetrators, is the correct approach ought to have been followed by the Constitution Court49

6. Conclusion and Recommendations This paper considers the application of common intention or purpose in criminal cases and found that though it may make some legal sense, to a great extent in bashing all possible participants in a criminal offence as equally liable, there appears to be a dilution of the constitutional principle of ‘prove beyond reasonable doubt’, where the law is of the view that any trace of doubt must in favour of the defendant. It is trite that the law would rather release several offenders if there is no sufficient prove than to punish an innocent person unjustly. Herein lies the unfairness in the doctrine of the common purpose or common intention. Proponents of Common purpose justify it as a ‘necessary evil’ for crime control where joint criminal activities take place. But one cannot rule out the fact that it violates an individual’s right under the Nigeria constitutional that states: ‘Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.’50 Subjecting all the victims to the same punishments is too high a price to pay for crime control. This paper recommends that such joint enterprise, especially where a person is just a party and not the actual person that perpetrated the crime, to bring such offence under crime of conspiracy or incitement to commit the crime in question, or for attempted incitement, and in case of mob violence, such a person may be held liable for a separate offence of public violence. This paper also suggests that legislators should consider some punishments in the Administration of Criminal Justice Act in Nigeria such as community service for offenders. This could probably be of advantage to the society than death sentence. Perhaps also, the punishment for offences of conspiracy, public violence, and incitement could be increased or brought under strict liability such that they reflect the courts strong condemnation for such criminal actions. This paper reiterates the decision of the court in Akinkunmi and Ors V State that ‘It is better to err on the side of acquittal when facts presented in a case are in-conclusive towards a conviction or leave one with a margin of doubt’.51

49 Burchell J, Principles of Criminal Law 5ed (2016)487,488 50 Constitution of the Federal Republic of Nigeria (CFRN)1999 (as amended) S.36 (5) 51 Akinkunmi & Ors v The State (1987)3 SC 152, 1 NWLR (PT 52) 602

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