It appears that the appellant is merely adumbrating the principles of agency and vicarious liability, which in criminal proceedings do not avail him. Criminal liability or responsibility operates on mens rea criminal liability or responsibility is therefore personal, and not vicarious. See AKPA V. THE STATE (2008) 14 NWLR (pt. 1106) 72; ACB v. OKONKWO (1997) 1 NWLR (pt. 480) 194.
PML (NIGERIA)
Very true; criminal liability is personal, it cannot be transferred because the mens rea or actus reus is on the accused in Court – SeeAkpa v State (2008) 14 NWLR (pt. 1106) 72. In this case, even if it can be said that Lucky Igbinedion is vicariously liable for the offences allegedly committed by the Appellant, where is the evidence that the Respondent compromised, compounded or condoned the offences?
PML (NIGERIA)
The unchallenged and indubitable facts are that the appellant, with two others, jointly attacked the deceased on the fateful day and at the material time. They were seen jointly attacking her with sticks, hoe and spear. They inflicted injuries to her on the head, shoulder and her body. The deceased died on the spot, as a result. The law on a joint commission of crime and the liability or criminal responsibility of each person who participated in the joint act is thus, as restated by this Court in GODWIN ALAO v. THE STATE (2015) LPELR -24686 (SC)-
Where more than one persons are accused of a joint commission of a crime, it is enough that they all participated in the crime. What each of the participants did in furtherance of the commission of the crime is immaterial. The mere fact that (there exists) the common intention manifesting in the execution of the common object is enough to render each of the accused person in the group guilty of the offence. See NWANKWOALA v. STATE (2006) 14 NWLR (pt.1000) 663; IKEMSON v. STATE (1989) 3 NWLR (pt. 110) 455; OYAKHIRE v. STATE (2001) 15 NWLR (pt. 1001) 157.
On the other leg of defence to which the appellant is seeking refuge which is that since the principal, Lucky Igbinedion had taken a plea bargain, the appellant as agent of the said known principal cannot have a charge against him in related offences. This stand is strange to our jurisprudence and cannot be sustained as criminal liability is personal and an accused cannot be heard to say when charged for a criminal offence that he was acting as an agent of a principal. See A. C. B. v Okonkwo (1997) 1 NWLR (Pt. 480) 194 at 207.
The elements of this offence thus reveal that there is not just the requirement for the actus reus to have been committed but the accused person must also demonstrate an intention to defraud, the mens rea must be established. The standard common law test of criminal liability is expressed in the Latin phrase actus reus non facit reum nisi mens sit rea, meaning: "the act is not culpable unless the mind is guilty". It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person's awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element; West's Encyclopedia of American Law, edition 2. Copyright 2008. These two requirements were succinctly described by Tobi, JSC in Abeke v The State (2007) LPELR-31(SC) at page 18 of the E-Report in these terms: Mens rea means a guilty mind. And actus reus means a guilty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act.
See also Mohammed v The State (1991) LPELR-1901(SC); Eyo v The State (2017) LPELR-43332(CA). Mens rea revolves on the intent of the accused person. If the accused person intended his action and proceeds to carry it out, then the mens rea and actus reus have been proved. Except it is a strict liability offence, if the prosecution is unable to prove the mens rea of the accused person in a criminal trial, notwithstanding the actus reus, the accused person may escape conviction as the offence would not have been proved.
The law has made it explicit that there are three ways of proving criminal liability by the prosecution in any criminal trial, to wit: (a) Confessional statement of the accused. (b) Evidence of an eyewitness otherwise known as direct evidence; or (c) Circumstantial evidence which must be cogent and compelling leading to the irresistible conclusion that the accused committed the offence. See Agboola v. The State (2013) 8 SC M 157; (2011) 11 NWLR (pt 1366) 619 – Abdullahi Ibrahim v. State (2014) 3 NWLR (pt 1394) 305 – Alufohai v. The State (2015) 3 NWLR (pt. 1445) 172. JOHN INYANG OKORO, J.S.C
It is the law, that a man intends the legal consequence of his acts, and if no act is directly linked to the person accused, he cannot be held liable. This legal preposition applies in respect of statutory bodies and agencies. It is therefore logical that where the respondents before this Court intends to sue the appellants as nominal parties, the actual security agencies that perpetrated the alleged action complained of ought to have been joined as a party, to enable the principle of vicarious liability to flow there from. For instance, if as Mr.
Falana would want us to believe, that respondents were detained in the underground cell of the Defence Intelligence Agency, nothing stops the said agency being made a party. In the same vein, it is only where the complaint is against the Federal Government or a State, which qualifies the Federal Attorney-General being called upon to answer. The case of the AG Kano State vs. AG Federation (2007) 6NWLR (pt. 1029) 164 AT 192 is directly on the point. PER BARKA, J.C.A.
A tort on the other hand is a purely civil wrong which gives rise to civil proceedings. The purpose of such proceedings being not to punish wrongdoers for the protection of the public at large, but to give an individual plaintiff compensation for the damage which he has suffered as a result of the defendant’s wrongful conduct.
Another important difference between tort and crime in Nigeria is that the entire criminal law has been codified in the form of the Criminal Code of the Southern States and the Penal Code of the Northern States, whereas the law of torts remains a creation of judicial precedent modified here and there by statute. A Tort may be defined broadly as a civil wrong involving a breach of duty fixed by law, such duty being owed to persons generally and its breach being redressible primarily by an action for damages.
In the light of the above definition, civil wrongs include: trespass, defamation, malicious prosecution, negligence, nuisance, strict liability, deceit, passing off, vicarious liability, enticement and harbaoury. HELEN MORONKEJI OGUNWUMIJU, J.S.C.
In D.S.P.G NWANKWOALA & ORS v THE STATE (2006) LPELR-2112(SC), the Supreme Court, per Tabai, JSC, held at pages 19–20, paras. D–A, that: “Where more than one person is accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial.
The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See also: PATRICK IKEMSON & 7 ORS v THE STATE (1989) 3 NWLR (Pt. 110) 455 ADEKUNLE v STATE (1989) 5 NWLR (Pt. 123) 505; OGEDENGBE v THE STATE (2014) LPELR-23065(SC); OBIDIKE v STATE (2014) LPELR-22590(SC); and SANNI v THE STATE (2019) LPELR-48417(CA), per Bada, JCA at pages 22–24, para. E . PER MOHAMMED, J.C.A.