AN APPRAISAL OF SECTION 36(12) OF THE CFRN, 1999 (AS AMENDED)
Author: O. M. Atoyebi S.A.N FCIArb. (U.K.)., Contributor: PRINCE IGHO
There exists two legal domains as far as individual wrong is concerned; Civil wrong or Criminal offence, wrong actions or inactions will inadvertently fall under one of each. The thin line between both domains ineluctably existing in society has to an extent created a blur as to what constitutes wrong or criminal offences, and as a result, there is no clear distinction between a criminal offence and a wrong within the confines of our jurisprudence. The law is trite as to what constitutes criminal offences in Nigeria, as such mere wrongs, violations or breaches of certain rights, policies or instructions cannot ipso facto crown an action with the status of a criminal offence. This article seeks to lift the fog off the fine line that exists between a criminal offence and a wrong bearing in mind the provisions of Section 36(12) of the 1999 Constitution as amended. This article will go further to show that a wrong, though actionable, does not necessarily create criminal culpability.
CIVIL WRONGS
Simply put, a Civil wrong is an infringement of a person’s rights for which there exists a civil remedy. Civil wrongs encompass a variety of acts or omissions done in violation of laid down laws and principles. It occurs when a person wrongly suffers a loss caused by another person, business or government[1] [1].
A civil wrong is a private wrong, and the remedy of the injured party is to sue the party who caused the wrong. The primary purpose of a civil suit is to compensate the injured party.
CRIMINAL OFFENCES
There exists a plethora of laws defining what constitutes a criminal offence under different facets, however, its scope can be gleaned from the provisions of section 36 (12) of the 1999 Constitution as amended. Section 36 (12) states;
“(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law”
A literal interpretation of the provisions in the above-cited section would posit that a criminal offence is one defined as such by a written law, that is, an Act of the National Assembly or a Law of a state, whose characteristics are specified by the said law; and for which a consequential penalty is prescribed by law. By implication, no person shall be said to have committed a crime except his actions or inactions have been so defined by the provisions of a law with a penalty attached to same. As a result, only a written law can criminalise an action.
STATUTES ON CRIMINAL LAW IN NIGERIA
There is a plethora of statutes in Nigeria that define crime and the characteristics of the actions that make up those crimes as well as the penalties that follow. Legislations that govern the affairs of crime are made by both the National and State House of Assembly as the case may be[2] [1]. A few inexhaustive lists of legislations that regulate the climate of criminal law are as follows;
1. Criminal Code Act[3] [2]: A federal statute that defines various criminal offences and their penalties. It is applicable in the southern part of Nigeria.
2. Penal Code (Northern States) Federal Provisions Act[4] [3]: A federal statute that defines criminal offences and their punishments. It is applicable in the northern part of Nigeria.
3. Administration of Criminal Justice Act (ACJA) 2015[5] [4]: A framework for the administration of criminal justice in Nigeria. It covers aspects such as arrest, bail, trial procedures, and the rights of the accused.
4. Terrorism (Prevention and Prohibition) Act, 2022[6] [5]: This statute addresses offences related to terrorism and provides measures for the prevention, detection, and punishment of such offences.
5. Advance Fee Fraud and Other Fraud-Related Offenses Act, 2006[7] [6]: This Act criminalizes various forms of fraud, including advance fee fraud, commonly known as “419” fraud.
6. Money Laundering (Prohibition) Act, 2011[8] [7]: This Act criminalizes money laundering activities and provides measures for the prevention and detection of money laundering offences.
7. Corrupt Practices and Other Related Offenses Act, 2000[9] [8]: This Act criminalizes corruption-related offences and provides for the investigation and prosecution of such offences.
8. Robbery and Firearms (Special Provisions) Act[10] [9]: This Act addresses offences related to robbery and the use of firearms in the commission of crimes.
9. Child Rights Act, 2003[11] [10]: While not exclusively a criminal law statute, the Child Rights Act contains provisions addressing offences against children, such as child trafficking and child abuse.
10. Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015[12] [11]: This Act criminalizes human trafficking and provides measures for the prevention, prosecution, and punishment of offences related to trafficking in persons.
The list is inexhaustible, but these legislations are Acts of the National Assembly that act as a regulator on the prescription and prosecution of criminal offences within these statutes.
WHAT THE LAW CONSIDERS AS AN OFFENSE THAT IS NOT RECOGNIZED OR KNOWN
By inference, an offence that is not recognized or known to law is any act or omission not prescribed by the provisions of any known law or statute applicable in Nigeria.
The Supreme Court (per Honourable Justice Afolabi (JSC) in Chief Olabode George v the Federal Republic of Nigeria[13] [1] held that: “Any conduct that must be sanctioned must be expressly stated in a written law […]. That is what section 36(12) of the 1999 Constitution provides. Such conduct should not be left to conjecture. As well it cannot be inferred by the Court”.
The Court of Appeal in MAINA v. FRN[14] [2] held thus: “Now, Section 36 (12) of the 1999 Constitution provides as follows: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provisions of a law.” The above Constitutional stipulation is that a person shall not be convicted of a criminal offence that is not defined and the penalty therefore prescribed in a written law. It is pertinent to state that the Appellant’s contention is not that the offence he was charged with in Count 1 is not provided for or defined in a written law; it is rather that some of the words employed in making the act an offence were not defined. This is definitely not what the Constitution proscribes in Section 36 (12) reproduced above. The constitutional prescription relates to a criminal offence that is not provided for under any written law: NYAME vs. FRN (supra).” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 19 – 20 Paras C – C)
Also, the Supreme Court in TAFIDA v. FRN[15] [3], the Supreme Court held that:
“The charge filed under Sections 104 for abuse of office, 203 for disobedience to lawful order and 517 for Conspiracy to disobey lawful order ostensibly for contract splitting in disobedience of lawful order by constituted authority cannot stand. The interpretation of a penal legislation or any statute for that matter should not be left to the whims and caprices of the Judge called upon to interpret the legislation. Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the Court.” Per KUMAI BAYANG AKA’AHS, JSC (Pp 15 – 16 Paras C – D)”
Thus, a person cannot be prosecuted or tried on account of actions or inactions that have not been criminalised by any laid down law. At best, a cause of action can accrue to such a person in tort or breach of contract.
THE EFFECT OF SECTION 36 (12) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED)
From the forgoing, the effect of provisions of Section 36(12) of the 1999 Constitution is that where an act or omission has not been criminalised by statute, a criminal action cannot be brought or maintained against such a party as it amounts in this regard as maintaining an action unknown to the law to which no penalty has been described.
The Court in Taiwo Aoko V Adeyeye Fagbemi and Anor[16] [1] was tasked with the question “Whether a person can be prosecuted and convicted for an offence not encapsulated and defined in any written law”;
The Lower Court wrongly convicted the Applicant on an allegation of adultery, an act that does not constitute an offence in the Southern states of Nigeria for the reason of it not being in any written law.
The High Court considered the contentions of the counsel to the parties and upheld that of the counsel to the applicant. Thus, the Court held that the conviction of the applicant by the Customary Court violates the applicant’s fundamental human right as provided for in the constitution. The conviction of the applicant was consequently quashed and the decision of the lower Court overturned. The High Court further ordered that the compensation awarded upon conviction by the Customary Court against the applicant to be paid to the 1st respondent be refunded to her.
The standard of proof in criminal cases is a proof beyond reasonable doubt. The question posed now is, how does the prosecution prove his case beyond reasonable doubt where the characteristics that make up “the offence” are not prescribed? What exactly would the Court be looking out for?
It is clear that the evidential burden placed on the prosecution under Section 135 of the Evidence Act, 2011, can never be satisfied if the offence and punishment do not exist in any written law.
Furthermore, in OMATSEYE v. FRN,[17] [2] the Court posited that:
“… See Section 36 (12) of the Constitution of Nigeria 1999 (as amended), which provides thus: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless the offence is defined and the penalty, therefore, is prescribed in a written law and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a Law.” My lord, over the years, the above provision of the Constitution of Nigeria 1999 (as amended) and its equivalent provisions, in the history of Constitutional developments in this country, have been severally pronounced upon by the Courts to the effect that such a trial and conviction is unconstitutional and any conviction thereon is liable to be set aside. I also hereby set aside the conviction of the Appellant by the Court below. See Captain Asake v. Nigerian Army Council (2007) 1 NWLR (Pt.1015) 408; Udoku v. Onugha (1963) 2 All NLR 107; Prince Joshua Paulson V. The State (2011) LPELR – 4875 (CA); FRN & Anor. V. Lord Chief Udensi Ifegwu (2003) 15 NWLR (Pt.542) 113; Major Adebayo V. Nigerian Army & Anor. (2012) LPELR – 7902 (CA); Hon. Hembe v. FRN (2014) LPELR – 22705 (CA).” Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 67 – 69 Paras B – D)”
The Non-compliance with the concept of Fair Hearing and the provision in section 36 (12) of the Constitution of the Federal Republic of Nigeria (as amended) can amount to wrong convictions and dire consequences that can almost never be corrected by the state in the life of a person wrongly convicted; therefore, creating a strong ground for appeal. Once a breach of the right to be heard is established, whether or not the decision made subsequently is correct is irrelevant because any breach of any component of the right to a fair hearing renders the proceedings in the case null and void.
CONCLUSION
The provisions of section 36 (12), enshrined in the Nigerian Constitution, serve as an antidote to lift the fog that has blurred the boundaries of criminal offences in Nigeria and to safeguard against the arbitrary abuse of court processes whereby mere violations of certain policies are couched under offences unknown to law. The literal interpretation of the provisions of that section should be taken into consideration before criminal proceedings are instituted so as not to waste the time of the Court.
However, the consequences of non-compliance are profound, extending beyond individual cases to erode public confidence in the legal system as a whole. Unjust outcomes undermined credibility, and a weakened rule of law become the repercussions of failure to adhere to the provisions of this section.
[1] Bryant & Stratton College Blog Staff, ‘What is Civil Litigation? – Defined from a Paralegal Point of View’ <https://www.bryantstratton.edu/blog/2017/august/what-is-civil-litgation#:~:text=Civil%20litigation%20is%20a%20term,outcome%2C%20but%20not%20all%20will.>
[2] Section 4, Constitution of the Federal Republic of Nigeria 1999 (as amended)
[3] Section 1 (2), Criminal Code Act
[4] Section 4, Penal Code (Northern States) Federal Provisions Act
[5] Section 3, Administration of Criminal Justice Act, 2015
[6] Section 11, Terrorism (Prevention and Prohibition) Act, 2022
[7] Section 1, Advance Fee Fraud and Other Fraud-Related Offenses Act, 2006
[8] Section 15, Money Laundering (Prohibition) Act, 2011
[9] Section 8, Corrupt Practices and Other Related Offenses Act, 2000
[10] Section 1, Robbery and Firearms (Special Provisions) Act
[11] Section 26, Child Rights Act, 2003
[12] Section 14, Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015
[13] [2014] 5 NWLR (Pt. 1399) 1 at 22, para. A
[14] (2022) LPELR-58942(CA)
[15] (2013) LPELR-21859(SC)
[16] 1961 ANLR 400
[17] (2017) LPELR-42719(CA)