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To What Extent Can a Person Be Liable for the Criminal Act Of 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 omission 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 intention 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 actus reus 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 common law 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 Page | 97 AFJCLJ 6 (2021) 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 crime. 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 <Kenya law org/ Kenya law blog doctrine -of -common -purpose-does -not-apply-to-Criminal – conduct.>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 evidence 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.
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