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HISTORY AND SOURCES OF NIGERIAN CRIMINAL LAW

This unit will introduce the students to the History and sources of Criminal Law in Nigeria. It would enable the students to know the purpose of Criminal Law as well as the nature of crime. The unit is ramified as follows:

1.0 INTRODUCTION

The Nigerian society is made of people with diverse cultures, behaviours and ways of life. The people relate with one another in the course of their daily existence. In this process, some people intentionally or advertently often step on the toes of others. A redress has to be put in place in order to check the excesses of the defaulting person or group of persons if peace and order are to be maintained in our organized society. It is on the foregoing premise that government has to put in place criminal law which regulates the conduct of the people against fellow citizens and government (public) and private establishments, and individuals.

Criminal Law which is the law of crime in Nigeria has a good history and was developed from sources, the subject matters or which will be examined in greater details in this unit.

2.0 OBJECTIVES

At the end of this unit, you should be able to: state the source of our criminal law give account of the history of the criminal law in Nigeria explain the whole essence of criminal law show how crime could be identified and even distinguished from what it is not.

3.0 MAIN CONTENT

3.1 Sources of Nigerian Criminal Law

The important source of Nigerian Criminal Law is the English common law which is the law created by the custom of the people and decisions of judges in England.

But what appears to be the dominant source of Nigerian Criminal law are the various statutory enactments such as the constitution, the Acts of the National Assembly, the Government Councils and Subsidiary Legislations of government department. It may also include Decrees and Edicts on criminal matters promulgated during military regimes. The above statutes which we have mentioned may be grouped into three distinct categories. The first are the many statutes made by the Federal, States and Local Government Councils in Nigeria which take care of various technical or specific offences whose purpose is to regulate the conduct of the people through sanctions or punishments contained in such offences.


The second category of criminal statutes are the Criminal Code Act, cap 77 Laws of the Federation of Nigeria and the Penal Code Law of 1959 which came into effect in 1960. While the Criminal Code applies in the Southern States of Nigeria, the Penal Code applies in the Northern States of Nigeria. These two codes criminalize many offences which are intended to regulate the conduct of the people.


Another source of Criminal Law, though secondary in classification, is judicial Precedent which manifests in courts decisions interpreted to give precision to some difficult legislative provisions.

SELF ASSESSMENT EXERCISE 1

1. What are the sources of Nigerian Criminal Law?
2. Can you validly say that our Criminal Law has an origin?

3.2 History of Criminal Law in Nigeria



In pre-colonial Nigeria, there was in existence, some systems of customary criminal law which regulated the standard of behaviour of the people. They were generally unwritten.

The Moslem community in the North had a highly developed system of Moslem law of crime with different schools, though; the maliki was the most dominant. Paganism was also practiced with its unique Paganism criminal law.

The Lagos colony had the modern English common is law which was introduced by ordinance No. 3 of 1863. The various political evolutions which went on in the various protectorates and colonies also led to the development of criminal law in Nigeria.


In 1904, Lord Lugard, the governor of the Northern protectorate introduced by proclamation a Criminal Code which incidentally was made applicable to the whole of Nigeria in 1916 after the famous amalgamation in 1914.

Following intense advocacy by the Northerners, the Penal Code Law, No. 18 of Northern Region was introduced in that Region. That exercise also restricted the Criminal Code of 1916 to apply only in the Southern part of Nigeria. The Penal Code was tailored against the background of the Cod of Sudan which itself had its origin from the Indian Penal Code of 1860.

Elsewhere in Nigeria and particularly in some part of the South, there was also the application of customary criminal law. At the 1958 Constitutional Conference, it was decided that Customary Criminal Law be abolished in Nigeria and that decision was articulated in the 1959 Bill of Rights developed by Nigerians and submitted to the Colonial Government in London.
The British Home Government approved the request and same was incorporated in section 22 (10) of the repealed 1963 Republican Constitution. That section of the constitution read “No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law”.

The foregoing was the basis for the court’s decision in the case of Aoko V. Fagbemi (1961) I All M 400. In that case, the court held that a woman cannot now be convicted for adultery (a morally reprehensible conduct) which has not been elevated to the level of a crime in the Criminal Code.

At the moment, Nigeria operates a dual Code system because of the applicability of the Criminal Code and the Penal Code. Furthermore, for effective administration of Criminal Law in our courts, the law of criminal procedure was codified as Criminal Procedure code of 1960 for
the North and the Criminal Procedure Act, cap 80, Laws of Federation of Nigeria 1990.

SELF ASSESSMENT EXERCISE 2

  1.  Trace the history of Criminal Law in Nigeria 
  2.  Discuss the duality of Criminal Code in Nigeria.

3.3 Purpose of Criminal Law

Criminal law exists and it is studied in order to ensure true knowledge of the law by the people, to be familiar with the nature of crime, the proceedings to be adopted in prosecution and the punishments which the law has put in place against the offenders.
For example, the objects of criminal law according to the Wolfenden Committee on Homosexual offences and protection are:

a. To preserve public order and decency
b. To protect the citizens from what is offensive and injurious and c. To provide sufficient safeguards against the exploitation and corruption of the more vulnerable members of the society.

SELF ASSESSMENT EXERCISE 3

What is the importance of Criminal Law to Nigerians?

3.4 The Nature of Crime

In order to understand the nature of crime, one has to look at the legal consequences which may follow it. For example, if the wrongful act or omission is capable of being followed by what is called criminal proceedings, that means it is regarded as a crime other wise, called an offence. If it is capable of being followed by la civil proceedings that means it is regarded as a civil wrong.


Crime or criminal wrong on the one hand and civil wrong on the other hand could be distinguished from each other. The true distinction between a crime and a civil wrong lies not in the nature of the wrongful act but in the nature of the proceedings and in the legal consequences that may follow.

SELF ASSESSMENT EXERCISE 4

  1.  How can you distinguish a crime from a civil wrong? 
  2. Write short notes on the varieties of punishment which the law has put in place for offenders.

4.0 CONCLUSION

In this unit, you have been exposed to the history and sources of Criminal Laws in Nigeria. It has also sufficiently demonstrated that nobody can be punished under the laws in Nigeria except the law is written and punishment defined.

5.0 SUMMARY

This unit has revealed the facts that Nigerian Criminal Law developed from English common law The sources of Nigerian Criminal Law are technical statutes on criminal matters as well as the Criminal Code and the Penal Code and that case law is a secondary source. There was in existence unwritten and indigenous laws in Nigeria before the advent of British rule The criminal law is instituted in order to regulate the conduct of the citizens. It is the nature of proceedings and the legal consequences which follow particular conduct or omission which characterize the nature of crime.

6.0 TUTOR-MARKED ASSINGMENT

Carefully trace the evolution of Criminal Law in Nigeria.


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