All the same, I do agree with the Respondent that the Appellant used the terms "compounding" and "condonation" interchangeably, as if the one can replace the other or be used in place of each other, which is a misapprehension of the law regarding the two principles.
These are two different principles with two different outcomes. "Condonation" is "the voluntary overlooking or pardon of on offence" – see Merriam-webster.com, wherein condonation is also defined as "implied pardon of an offence by treating the offender as if it had not been committed". The difference between the two, therefore, is that while the compounding of an offence does not mean that the offence had not been committed, by condoning the offence, the offender is treated as if the offence had not been committed in the first place.
Condonation is, principally, used in canon law and military law. In canon law, condonation is a defence to an action for divorce that the "innocent spouse having forgiven the adulterous spouse cannot now take proceedings – see legal_dictionary.thefreedictionary.com. In Nigeria, Section 26 of the Matrimonial Causes Act provides that-
Except where Section 16(1) of this Act applies, a decree of dissolution of marriage shall not be made if the petitioner has condoned or connived at the conduct constituting the facts on which the petition is based.
In his book, Nigerian Family law, Professor I. Sagay expounded thus-
In law, there is condonation when one spouse, with full knowledge of the matrimonial wrong committed by the other spouse, reinstates the offending spouse to his or her earlier marital position, with the intention that the spouse whose wrong is so condoned does not henceforth, commit any furthermatrimonial offence.
PML (NIGERIA)
As I said, compounding an offence terminates legal proceedings and leads to acquittal of the accused. The EFCC merely investigates; it has no power to acquit the accused. It is the Court that has power to acquit the accused. If EFCC only investigates but has the power to compound an offence, and it is the Court that can acquit an accused, EFCC "may compound an offence" that is already before the Court, but subject to the power of the Attorney-General of the Federation "to institute, continue, takeover or discontinue criminal proceedings".
PML (NIGERIA)
The Respondent reproduced this decision at page 20/21 of its Brief, and based its arguments on the misconception that "compounding a crime" is the same as "compounding of an offence" in a criminal trial. But compounding crime is an offence, while compounding an offence allows the accused to be exonerated and acquitted for the crime.
PML (NIGERIA)
In Chidolue V. EFCC (supra), which the Respondent relied upon, the Court of Appeal based its decision on compounding crime thus-
The Black's Law Dictionary, 6th Ed., defines compounding crime in the following words:
"Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime".
The same dictionary gives three elements at common law and under typical compounding statute that must be present before an offence can be compounded, These elements are:
(1) An agreement not to prosecute
(2) Knowledge of the actual commission of crime
(3) The receipt of some consideration.
PML (NIGERIA)
In Chidolue V. EFCC (supra), which the Respondent relied upon, the Court of Appeal based its decision on compounding crime thus-
The Black's Law Dictionary, 6th Ed., defines compounding crime in the following words:
"Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime".
PML (NIGERIA)
Coming home to Nigeria, Section 14 (2) of the EFCC Act provides –Subject to the provisions of Section 174 of the Constitution – – (which relates to power of the Attorney General of the Federation to institute, continue, take over or discontinue criminal proceedings against any person in any Court of law), the Commission may compound any offence punishable under this Act by accepting such sum of money as it think fit, not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.
This provision in the EFCC Act is self-explanatory; EFCC has power to compound any offence punishable under the Act by accepting such sum of money as it thinks fit, not exceeding the maximum amount that the accused would have been liable if he had been convicted, which is compounding of an offence, and not compounding a crime.
PML (NIGERIA)
"Compounding of offences" on the other hand, is an act on the part of the victim, who decides to pardon the offence committed by the accused person, and requests the Court to exonerate him. This does not mean that the offence has not been committed; it only means that the victim is willing to pardon it, or has accepted some form of compensation for what he or she has suffered. So, the compounding of offences terminates the legal proceeding against the offender and he is entitled to an acquittal – see UKESSAYS – published: 27/3/2015. The law of compounding is provided for in many other jurisdictions.
PML (NIGERIA)
Under the Common Law and most modern statutes, a compounding offense consists of three basic elements: (1) knowledge of the crime; (2) the agreement not to prosecute or inform; and (3) the receipt of consideration. The offense is complete when there is an agreement to either withhold evidence of the crime, conceal it, or fail to prosecute it.
PML (NIGERIA)
"Compounding a crime" is defined in the same Black's Law Dictionary, 9th Ed., as follows The offense of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution.
Compounding a crime is also "a criminal act in which a person agrees not to report the occurrence of a crime or not to prosecute a criminal offender in exchange for money or other consideration" – see legal dictionary, thefreedictionary. com, wherein it was further explained-
PML (NIGERIA)
Section 14(2) of the EFCC Act provides as follows:
"Subject to the provisions of Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney General of the Federation to institute, continue, takeover or discontinue criminal proceedings against any person in any Court of law), the commission may compound any offence punishable under this Act by accepting such sum of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence."
The implication of the said Section 14(2) of the EFCC is as follows:
(a) The EFCC has the power to compound an offence.
(b) The offence to be compounded must be one that is punishable under the EFCC Act.
(c) The EFCC can accept money in compounding the offence
(d) The sum of money the EFCC can accept must be that which must exceed the maximum amount to which that person would have been liable to pay if he had been convicted of that offence.
The Court of Appeal in the case of Chidolue v. EFCC (2012) 5 NWLR (Pt. 1292) 160 at 177 construed that Section 14 (2) of the EFCC Act thus:
"The same dictionary gives three elements at common law and under typical compounding statute that must present before an offence can be compounded. These elements are:
1. An agreement not to prosecute
2. Knowledge of the actual commission of crime
3. The receipt of some consideration.