Classification of offences

Transcription

1 Classification of offences

2 By Nnamdi Nwodo and Nonso Attoh Offences can be classified in many ways. The Classification may be for convenience without having any legal consequence. The Classification can also be substantive or procedural with the attendant legal significance. We can classify offences as territorial an act may be an offence in a territory but is okay in another e.g. adultery in the Northern and Southern Nigeria. An offence might also prescribe that only a category of persons are capable of committing it e.g. rape as defined by section 357 of the Criminal Code can only be committed by a man. It is specific to men alone. Offences can also be classified as summary and indictable offence. The effect of this classification is basically procedural. We can also classify offences according to the object (person or thing at the receiving end) Our discussion will center mainly on the procedural and substantive classifications while also briefly outlining the others. The Major Classification of Offences and the Legal Effects of the Classification Classification in this context deals with categorization of offences according to the legal consequences. This has more to do with the gravity of the offence which is aptly reflected in the gravity of prescribed punishment. The classification is substantive in nature. The classification of offences as prescribed by section 3 of the Criminal Code Act is as follows: Felony is any offence which is declared by law to be a felony, or is punishable, without proof of previous conviction, with death or with imprisonment for three years or more. Thus, it is either the law has classified the offence as a felony or the punishment for the offence is death or imprisonment for a term of three years or more. Misdemeanor is any offence which is declared by law to be a misdemeanor, or is punishable by imprisonment for not less than six months, but less than three years. The

3 test is whether the offence is labeled as misdemeanor by the law or the prescribed punishment is not less than 6 months but less than three years i.e. from 6 months 2 years and11 months. Simple offences: All offences, other than felonies and misdemeanors, are simple offences Legal Effects of the Classification The effects of categorizing offences as felony, misdemeanor and simple offences has the following legal consequences Bail: bail is a constitutional right; section 36(5) of the Constitution presumes an accused innocent until proven guilty this is the foundation of bail applications. However, bail is at the discretion of the court. The court exercises the discretion to grant bail judicially and judiciously. One of the factors the courts normally consider while considering a bail application is the gravity of the offence. The courts are usually not inclined in granting bail for felonies (due to the nature of the charge and the gravity of the punishment). DOKUBO-ASARI V. FEDERAL REPUBLIC OF NIGERIA (2007) LPELR- 958(SC) But for misdemeanors and simple offences, bail is normally granted except if there are compelling circumstances to hold otherwise the police is also inclined in granting police bail for misdemeanor and simple offences Power of arrest: apart from the powers of the police and other law enforcement agencies to arrest a person suspected to have committed an offence, a private person can also arrest but, his power of arrest is subject to some limitations which is dependent on the category of the offence. Section 12 of the Criminal Procedure Act (note that the Act ought to be read as law of any of the Southern States based on section 2 and 493 of the Administration of Criminal Justice Act 2015 which has repealed the CPA) provides that a private person can arrest a person who commits an indictable offence in his presence or any person whom he reasonably suspects of committing a felony or a misdemeanor at night The Rule in Smith v Selwyn: the rule The rule in Smith v. Selwyn is that felony cannot be made the foundation of a civil action at the suit of the person injured against the person who inflicted the injuries until the latter has been prosecuted or a reasonable excuse shown for his non-prosecution.see Fawehinmi v Akilu (1988) LPELR-20549(CA) thus, when the act in question is a felony, it cannot be made the foundation of a civil case until the offender has been duly prosecuted or a reasonable excuse shown for non-prosecution. E.g. if A man is dispossessed of his car by armed robbers, if he rushes to court to bring a civil action for the tort of conversion, the court will stay the proceedings till the offence of

4 armed robbery is tried. This rule was imported into section Section 9(1) of the Actions Law of Anambra State and was interpreted in the 2000 case of Okafor v. Madubuko (2000) 1 NWLR (Pt 641) Pg. 481 Paras. H - B However in the case of Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt.1004) pg.1 the Court of Appeal held: "I agree with and accept the respondent's submission on the abrogation of the archaic rule in Smith v. Selwyn (1914) 3 KB 98 or its inapplicability in Nigeria for its being a "clog in or to the wheel of administration of justice" - see Veritas Insurance Co. Ltd. v. City Trust Investment Ltd. (supra); James v. IGP (supra) and A.-G., Fed v. Dawodu (supra)..." The reason for holding the rule inapplicable was further explained by Aderemi JCA in the case of ALAO v. NIDB (1999) LPELR-6673(CA) as follows: "The intendment of the Rule in Smith v. Selwyn is primarily to avoid the compounding and the concealment of a felony hence it dictates a hold on further proceedings in an action for damages founded on a felonious act alleged to have been committed by the defendant against the plaintiff until the defendant has been prosecuted or a reasonable excuse offered for his non-prosecution. The appellant and the respondents are ad idem in their respective briefs that where a criminal act which consequently injures public feeling is also a civil injury to a person, that person shall not be permitted to seek a redress for the civil injury until the injured public feeling is first assuaged. The rule founded on public policy and aptly stated by Swinfen Eady L. J. in his judgment in Smith & Anor. v. Selwyn (1914)1 K.B. 98 (Court of Appeal, England) was long ago enshrined in the jurisprudence of England until it was abolished thereby the promulgation of Criminal Justice Act, 1967 Section 1 thereof. The application of the rule has since stopped in England. However, the rule has been followed in a number of cases in Nigerian Courts. See (1) Ojikutu v. A.C.B. (1968) 1 All NLR 40; (2) Haco Ltd. v. Udeh (1959) NMLR 61 and (3) Fulani v. Idi (1990) 5 NWLR (Pt.150) 311. The appellant in his brief of argument contended that the rule is still in force in Nigeria as no decree or act has been promulgated repealing it nor has the Supreme Court, the highest court of the land, overruled its earlier decisions where in which it applied the rule. On the other hand, the respondents, through its brief of argument contended that the rule has constituted a clog in the wheel of proper administration of justice and this is an anachronism. It defeats the end of justice. It further contended that the combined effect of Section 5 of the Criminal Code Act 1958 (now Cap 77 of the Laws of the Federation, 1990) and Section 8 of the Interpretation Act is that a pending criminal matter must never be allowed to stand in the way of an aggrieved person from seeking a redress in the court of law. Section 5 of the Criminal Code provides:- "When by the code any act is declared to be lawful, no action can be brought in respect thereof. Except as aforesaid, the provisions of this Act shall not affect

5 any right of action which any person would have had against another if this Act had not been passed." Section 8 of the Interpretation Act 1964 provides: "An enactment shall not be construed as preventing the recovery of damages in respect of injury attributable to any act by reason only of the fact that the enactment provides forfeiture or punishment in respect of the act." Let me say straightaway that Nigerian Courts preserve and follow, stricto sensu, the common law doctrine of stare decisis - which literally translated means that a lower court must for all times hold itself bound by the decisions of a higher court or better put by the decisions of the Highest court of the land until they are seen to have been overruled. The highest court of our land undoubtedly, is the Supreme Court. Such decisions of the Supreme Court can only be annulled by legislation, or a Decree or by rules regulating the practice and procedure as given by the judicial decision of the Supreme Court itself given intra judicially when it is satisfied that its previous decision was reached per incuriam or that it would perpetuate injustice. See Bucknor-Maclean v. Inlaks Ltd. (1980) S.C. 1. It follows that it is only the Supreme Court, sitting as a full court that can depart from its previous decisions. See Yonwuren v. Modern Signs (Nig.) Ltd. (1985) 1 NWLR (Pt.2) 244; (1985) 2 S.C. 86 and Ojokobo v. Alamu (1987) 3 NWLR (Pt.61) 377. I shall now examine the cases in which Nigerian Courts have considered the applicability of the rule in Smith v. Selwyn. In Ojikutu v. A.C.B. (supra) which touches on banking transaction and the Supreme Court considered the circumstances for the application of the rule in Smith and Selwyn. In that case the defendant had averred in his statement of defence paragraph 5 thereof thus:- "The defendant avers that there is a written agreement for a loan of ý between the plaintiff and defendant and that the said agreement was altered and forged without the knowledge and consent of the defendant." Based on this averment the counsel for the defendant had, argued before the Supreme Court that the application was sufficient to bring the rule into force. That argument had been overruled by the trial Judge. The Supreme Court said at page 45: "Mr. Ojikutu submitted to us that the principle in Smith v. Selwyn...was that the plaintiff must be deprived from benefiting from his felonious act and so could not be permitted to sue if the defendant alleged that he based his claim on a felonious act. We do not see that Smith v. Selwyn decided anything of the sort. It was dealing with exactly the opposite situation where a plaintiff was bringing an action against a defendant for damages based on a felonious act of the defendant...no authority was cited to us to show the converse applied and we consider the learned trial Judge was right to reject the submission that Smith v. Selwyn could be extended in the way that was suggested." It will be seen from the above quotation that the Supreme Court never held that the rule in Smith v. Selwyn was applicable to the case before it. In the recent case of Okonkwo & Ors. v. Obunseli & Anor. (1998) 7 NWLR (Pt.558) 502 in which the dispute was as to whether the respondents (plaintiffs in the court below) were right in instituting a civil action against the appellants (defendants in the court below), while the criminal prosecution of the appellants was still going on or pending at the Chief Magistrates Court or they should have waited for the completion of the

6 said prosecution before instituting this action, this court (Enugu Division) per the leading judgment of Akpabio JCA said at page 511:- "In my respectful view, I think that the emphasis in both the Torts Law and the Law of Actions Law including even the rule in Smith v. Selwyn (supra) itself was on the commencement of prosecution rather than on its conclusion. This is borne out of the fact that even in Section 5 (1) of the Torts Laws 1987 under the last two subparagraphs (b) and (c) set out above, it is not even necessary that any prosecution should have been commenced. Under sub-para. (b) it is sufficient that a mere report is made to the police who fail to prosecute or sub-para. (c) reasonable excuse is offered for failure to prosecute the felony." In the same case Tobi JCA added at page 512 and I quote:- In the light of the state of the statutory laws at the Federal level which make the English Common Law rule in Smith v. Selwyn (1914) 3 K.B. 98 no more applicable in Federal matters it is a matter of some serious concern why Section 9 (1) of the Law of Actions Laws (1981) and Section 5(1) of the Torts Law 1987 of Anambra State should still operate. That apart, the entire policy behind Smith v. Selwyn will work injustice particularly in Nigeria where it, at times, takes so much time to apprehend an accused person. And what is more, proof of a criminal matter is quite different from proof of a civil matter and there is really no justifiable reason why the two should be so related in terms of prosecution." Section 8 of the Interpretation Act 1964 now embodied in the Laws of the Federation 1990 Cap. 192 Section 8(2) thereof which I quoted above is a Federal Legislation: it is unambiguous, the wordings are very clear and straight forward and giving same the ordinary and simple grammatical meaning and connotation which the law enjoins. See Olanrewaju v. Arewa (1998) 11 NWLR (Pt.573) 239; the only conclusion I can reach and which I reach is that the English Common Law Rule in Smith v. Selwyn is no more applicable in Nigeria. To hold otherwise is to deny an aggrieved person the right to seek a redress in the citadel of justice. The Limitation Law with all its excruciating weight will be allowed to descend on him prostrate having been tied down by that rule. Even in England where process of seeking justice is not tardy as here, the rule in Smith v. Selwyn has in their collective wisdom been rendered out of operation. To encourage its application in this country giving the prevailing conditions is to allow for the rolling out of a clog in the wheel of administration of justice."per ADEREMI, J.C.A.(Pp , paras. C- G) However in 2016 the Court of Appeal per Denton-West JCA still referred to this rule in its decision in BOBADE OLUTIDE & ORS v. ADAMS HAMZAT & ORS (2016) LPELR (CA) "It is a matter of trite law that whenever a criminal action is pending in respect of the same party, the said criminal action ought to be disposed off before a civil action can be initiated or embarked upon. See Smith & Anor vs. Selwyn (1914) 1 K.B. 98 (Court of Appeal, England).

7 Even though it is doubtful if the decision was strictly based on this Rule, it is nevertheless clear that the courts do not favor the application of this rule which has been abolished in England. Compounding of offences: One can only be guilty of the offence of compounding, if the offence compounded is a felony.compounding is the agreement for a consideration, to conceal or not to prosecute a felony. See section 127 of the Criminal Code. Neglect to prevent the commission of an offence: the law punishes anyone who knowing that a person designs to commit or is committing a felony and fails to use all reasonable means to prevent the commission or completion. See section 515 of the Criminal Code Punishment for attempt to commit an offence: sections of the Criminal Code prescribes the different punishments fro attempt to commit an offence. The gravity of the offence is dependent on whether it a felony, misdemeanor or simple offence. Procedural Classification Indictable Offence: indictable offence" means any offence- (a) which on conviction may be punished by a term of imprisonment exceeding two years, or (b) which on conviction may be punished by imposition of a fine exceeding four hundred naira; not being an offence declared by the law creating it to be punishable on summary conviction; see section 1 of the CPA. It is an offence tried by information. Information is a means of instituting of criminal proceeding in the High Court. Information contains the charge sheet, proof of evidence which encompasses all the statements of the prosecution s witnesses and the unedited statement of the accused person see section CPA. Note that the Attorney General or officers in his department must obtain the consent of a High Court Judge before filing information (this applies across the federation except in Lagos and Abuja) Non indictable offence/ Summary offences: these are offences that do not fall under the meaning of an indictable offence. They are tried summarily. Summary trial does not require the rigorous process of filing information, see section 277 of the CPA; Alamieyeseigha v. F.R.N (2006) 16 NWLR (Pt paras. G- C. Summary trial is obtainable in the Magistrate Courts and the Federal High Court. See section 33 of the FHC Act

8 Classification based on the object of the offence Offences can further be classified based on the object the person or thing the offence is committed against Offences against the person This is mainly provided in Part 5 of the Criminal Code Assault. See chapter 25 of the Criminal Code Causing death or harm by dangerous driving Criminal liability for neglect Murder. See section 316 of C.C Manslaughter see section 317 of the C.C Cyber stalking and cyber bullying can also be classified as offences against the person. See Sections 24 and 26 of the Cybercrime (Prohibition and Prevention) Act 2015 Offences against property The offences are specified in Part 6 of the Criminal Code, the under listed are the major offences relating to property Stealing see section 390 Criminal Code Stealing with Violence see section 401 C.C Demanding with menaces. See section 406 of the C.C Burglary and house breaking. See section C.C Arson and destruction of property. Chapter 41 of the C.C Obtaining by false pretences and cheating. See section 419 and 421 CC Receiving stolen property or property fraudulently obtained. see section 427 of the C.C English law classification In English law, offences can further be classified according to source. The sources could either be common law or statute.

9 Common Law offence: Common law offences Common law offences are crimes under English criminal law and the related criminal law of Commonwealth of Nations countries. These are offences of the common law developed entirely by the courts and for which there is no actual legislation. An example is the offence of "conspiracy to corrupt public morals" created by the court in Shaw v. DPP (Ladies Directory Case) The various common law offences are developed on the basis of considering some offences as inherently evil or mala inse. Statutory Offence: Statutory offence as the name implies, are offences created by statute..e.g. of offences contained in the Criminal Code, Penal Code, EFCC Act etc are statutory offences. Section 36(12) of the 1999 Constitution provides that: "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". The provision of the constitution is clear enough. Statutory offence is the only offence recognized by law; the implication being that common law offences and unwritten customary law offences have no place in Nigerian Law.