AN APPRAISAL OF LEGAL PLURALISM IN THE ADMINISTRATION OF PENAL

AND CRIMINAL CODES IN NIGERIA: A CALL FOR HARMONISATION

By
Dalhat A. Idris
Introduction
The Nigerian society is made up of people with diverse cultures,
behaviours and ways of life. In the pre-colonial Nigeria, there were in
existence some plural criminal justice systems which regulated the
standard of behaviour of the people. In the North, for instance, the
predominantly Muslim community had a highly developed criminal
justice system with different Schools, the most prominent being the
Maliki school of jurisprudence.1 In the South, there were in existence,
in each of the settlements, some customary criminal laws which were
generally unwritten.2With the coming of the British, the English
common law system was introduced in the Lagos colony.3 In 1904,
Lord Lugard, then the Governor General, introduced the Queensland
Criminal Code in the North which incidentally was made applicable to
the whole of Nigeria in 1916, after amalgamation of the Northern and
Southern Protectorates in 1914.4
However, this wholesome introduction of the English Criminal
Laws without due consideration for the cultural differences of the local
people made the Code unsuitable for the country. To ensure peaceful
co-existence, the colonialists, devised ways of accommodating the
inherent differences in the cultures of the North and South by
ultimately creating two distinct legal systems, the Penal Code System5
(for the North) and the Criminal Code system6 (for the South). The
Criminal Procedure Code and

LL.B (Hons), BL, LL.M, PhD Research Fellow, Lecturer & Assistant
Dean (Undergraduate), Faculty of Law, Ahmadu Bello University, Zaria.
1
Karibi-Whyte, A. G. (2005). History and Sources of Nigerian Criminal
Law; Spectrum Books Limited, Ibadan, p.124
2
Adebayo, A. M. (2012). Administration of Criminal Justice System in
Nigeria, Princeton Publishing Company, Lagos, pp.3-4
3
This was made possible by Ordinance No.3 of 1863
4
Chukkol, K S. (2010). The Law of Crimes in Nigeria, Ahmadu Bello
University Press Ltd., Zaria, p.14
5
Now Cap. P3 LFN 2004
6
Now Cap. C38 LFN 2004
An Appraisal of Legal Pluralism in the Administration of Penal and
Criminal Codes in Nigeria: A Call for Harmonisation
the Criminal Procedure Act were also introduced. The Colonialist
believed that there was the need to respect and retain the people’s
diverse culture, religions and ways of life. This ultimately led to legal
pluralism in the administration of criminal justice in Nigeria.
All these set of legislation (i.e. the penal and the Criminal
Codes, the Criminal Procedure Code (CPC) and the Criminal Procedure
Act (CPA), have gone through several changes and modifications.
There are, however, disparities in the codes, from the method of
commencement to procedural nature and the various punishments
prescribed. Interestingly, a careful perusal of these legislation would
reveal that despite their inherent differences due to cultural
backgrounds and beliefs, the offences have similarities in definitions,
ingredients and sometimes even the punishments.
The problem, however, is that the colonial heritage of dual
criminal justice system has been one of the bane that had perpetuated
the dichotomy of North and South in Critical national discourse. This
has created a disparity in the development of criminal laws in Nigeria.
This paper, therefore, appraises the plural nature of the criminal
laws in Nigeria. It also discusses the prospect of harmonization of
Penal and Criminal Codes, analyses some of the provisions of the
Codes that can be harmonized and highlights some that cannot be
harmonized due to over specific nature of the offences contained
therein.

Brief History of the Penal and Criminal Codes, Criminal Procedure

Code and Criminal Procedure Act
Towards the end of the 20th century and right at the heels of the
new millennium, the body of criminal laws in Nigeria have assumed the
dimensions of separated and disjointed legislation variously enacted
by the federal and state governments, most of which appeared to be
duplicated and overlapping in structure and context.7By 1899, the
colony of Lagos and the Southern provinces of Nigeria made effort to
enact a Criminal Code which culminated in Criminal Code Bill of 1899.
The content of the Bill, which was seen to be verbose coupled with the
foreign language,

7
Ocheme, P. (2006). The Nigerian Criminal Law, Liberty Publications
Ltd, Kaduna, p.15
198
Dalhat A. Idris JCL 4/1

gathered opposition against it. Essentially, the Criminal Code, which

was first introduced into the Northern Protectorate in 1904, became of
general application to all part of the amalgamated Nigeria in 1916.8 It
continued its comprehensive application until the 30th day of
September, 1960 when the Penal Code law was passed into law by the
Northern Regional Assembly, thus giving force to the application of
the Penal Code, and its corresponding procedural law, the criminal
procedure code, in the Northern Region.9
It must be pointed out that the criminal Procedure Ordinance,
now known as the Criminal Procedure Act, was enacted as Ordinance
No. 42 of 1945. It was to govern the law of Criminal Procedure for the
whole country. However, because of the heterogeneous nature of the
country, complications were discovered in Northern Region which
necessitated a comprehensive review.10 The late Premier of Northern
Region, Sir Ahmadu Bello set up a high powered panel of jurists with
the following terms of reference:
To consider the system of law at present in force in the
Northern Region, that is English law as modified by Nigerian
legislation, Islamic law and Customary law, and
the
organization of the courts and judiciary enforcing the system;
and
Whether it is possible, and how far it is desirable, to avoid any
conflicts which exist between the present systems of law, and
to make recommendations as to the means by which this
object
may be accomplished as regards the re-organization of the
courts and the judiciary in so far as this may be desirable.11
Consequently, the Criminal Procedure Code was passed into
law in July, 1960 and became effective on the 1st October, 1960.
Generally, the Penal Code, which is considered to be a hybrid
or an admixture of Islamic and English Common Law, was modeled
after the Sudanese Penal Code, a country whose ethnic and religious
complexities are in many respects similar to that of Northern Nigeria.12
Like the Sudan, the dominant religion in Northern Nigeria is Islam. It
was also meant to make local modifications to reflect the

8
Ibid., p.16
9
Ibid.
10
Olakanmi, O. (2004). Cases and Materials on Criminal Procedure
Code,Lawlords Publications, Abuja, p.8
11
Ibid.
12
Karibi Whyte, A. G. Op.cit.,n.1, p.193
199
An Appraisal of Legal Pluralism in the Administration of Penal and
Criminal Codes in Nigeria: A Call for Harmonisation
peculiarities of the Northern Region and to make provision for the
strong but numerically inferior non-Muslim groups, whose influence
was equally entrenched.13 The Code was, perhaps, meant to be a
compromise between the traditionalists and the reformers. The Code
has been in operation since its introduction in 1960. As noted earlier,
conflicts arose between the Islamic and the customary laws and the
imported procedure rules. In response to this and in order to facilitate
the application of the provisions of the Penal Code effectively, a new
criminal procedure code, also based on the Sudanese Penal Code
Procedure, was enacted in 1960.14 The two new Codes were to be
applied mutatis mutandis by courts which hitherto were familiar only
with Islamic Criminal Jurisprudence and Islamic Criminal Procedure.
The Southern Nigeria adopted the Criminal Code (inspired by
the English Common Law and legal practice) because of its early
exposure to the English legal System. They also adopted the Criminal
Procedure Act.15
It is a paradox that by 1904, a Criminal Code built on the
Queensland model of 1899 was enacted for the Northern Province.
Following the amalgamation of both Northern and Southern Provinces
in 1914, the Criminal Code which was enacted for only the Northern
Province became operative throughout Nigeria. It is still a paradox that
while the Northern states, the original users of the Code, has long
discarded it alongside with the procedure, the Southern states still use
the 1899 enactment with all its deficiencies. Although the Code has
been variously amended by the Southern states, it is indeed a paradox
that it is still applicable by these states.
It is interesting to note that both the former Northern and
Southern Regions have now been split into various states. Yet they
continue to observe and apply the provisions of the penal and Criminal
Codes, as amended variously by each state legislature.16 This perhaps,
explains why Abuja which was carved out of the territories of the
Northern States as a new Federal Capital Territory, was

13
Ibid.
14
Ibid.,p.195
15
Cap. C38 LFN 2004
16
Ocheme, P. Op.cit.,n.7, p.16
200
Dalhat A. Idris JCL 4/1

conferred with the jurisdiction of the Penal Code. Before the shift of
the current Federal Capital to Abuja, it was the Criminal Code that was
applicable to Lagos.

Harmonisation of Penal and Criminal Codes

The idea of a unified criminal law in Nigeria has been raised and
mooted in several fora owing to the many challenges that arise from
an attempt to carry out such exercise. The most glaring challenge of
harmonizing Penal and Criminal Codes arise from the fact that all
states in the Federation are constitutionally empowered to enact
applicable criminal laws.17 Although States have not departed
significantly from the two codes, a careful perusal of the laws reveals
that some States are more advanced and proactive in the review of
their criminal laws and punishment.18 In this researcher’s view, a
dedicated attempt by the States to review their criminal laws regularly
may just be the solution to eradicating the disparity in the development
of criminal laws in Nigeria as a whole.
Another major challenge for unification that follows closely the
first is the difference in some accepted values such as, at what age a
child becomes an adult or should intoxication in all ramifications be
regarded as a crime? Better still, should adultery be regarded as a
crime in both jurisdictions?
Another challenge has to do with some issues which such
exercise may generate. One of such issues is its ability to challenge
the nation’s federal status. Some observers noted that a cardinal
characteristics of federalism lies in the existence of diversity. They
argued that a unified criminal law system will no doubt challenge the
people’s existing belief system and life style.19
Notwithstanding these challenges, it has become imperative, in
recent times, that these two codes (Penal and Criminal Codes) should
be unified. It was argued that their harmonization will help the
government foster national

17
See Residuary Legislative List, Part II, Second Schedule of The 1999
CFRN (as amended).
18
See for example the provisions of the criminal laws of Lagos State
of 2011.
19
Adebisi, O. et al (2014). Should the Criminal Law be merged?

The nation Newspaper; retrieved from

www.thenationonlineng.net/news on 10/5/2015
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An Appraisal of Legal Pluralism in the Administration of Penal and
Criminal Codes in Nigeria: A Call for Harmonisation
unity because the continuous application of the two codes dealing
with criminal matters has been one of the mechanisms that had
perpetuated the concepts of North and South dichotomy in critical
national issues.20 It would aid in pushing to the fore, the ideas and
ideals that Nigeria as a nation holds dear while relegating to the
background cultural differences which even though remain significant
but nevertheless should not be the focal point.
It is submitted that the harmonization of penal and Criminal
Codes would, no doubt, be a welcomed development to lawyers and
even members of the general public. It would not only enhance the
ease with which the legal profession is practiced but also provide a
platform for members of the general public to be well aware of offences
that are applicable in all jurisdictions in Nigeria. As noted by the former
Attorney-General of the Federation and Minister for Justice
(Mohammed Bello Adoke (SAN)), the unification of the two sets of law
would help the government foster national unity since a crime in Kano
would also be seen as a crime in Lagos.21
In addition to the needs to address this issue through a bold
attempt at harmonization, there is an equal imperative to review both
codes, modernize them and keep them relevant to the yearnings and
aspirations of the Nigerian society.
Some observers are unsure whether the government’s
objective of enhancing the nation’s unity with mere unification of laws
is desirable now. They contend that the government should focus its
attention on addressing other major challenges bed-eviling the
criminal justice system with a view to ensuring social justice and
secured society where the law is supreme.22 To them, the federal
government should give priority to addressing the defects in the laws
to ensure that they operate better to serve the purpose for which
criminal justice system exists in every society.

20
Ibid.
21
Ibid.
22
Ibid.
202
Dalhat A. Idris JCL 4/1

Consideration of Some Provisions of Both Penal and Criminal Codes

that Can be Harmonized
This segment aims at highlighting certain areas of both Penal
and Criminal Codes that can possibly be harmonized. It does not serve
as an exhaustive discussion of the defences and offences under both
codes. The segment starts with defences negating criminal intent such
as mistake, accident, compulsion, necessity, intoxication and insanity,
among others. It also discusses offences against person such as
Assault, Homicide and manslaughter. It equally discusses offences
against property such as theft/stealing, robbery, forgery and cheating,
and offences against the state such as unlawful assembly and breach
of peace, among others.

Defences Negating Criminal Intent

It is trite that the Nigerian criminal justice system operates on
the foundation that there is no criminal liability unless there is criminal
intent. Thus, except in cases of strict liability where the accused’s
criminal intent is not material, the guilty mind or criminal intent must
exist at the time the offence is alleged to have been committed.
However, both Penal and Criminal Codes contain certain
provisions which, if relied upon by an accused, can negate criminal
intent and reduce criminal liability.23 The defences that negate criminal
intent under both codes include, but not limited to, mistake, accident,
compulsion, necessity, immaturity, intoxication and insanity, among
others.
A brief analysis of each of the above is provided
below.

i. The Defence of Mistake of Fact

Even though ignorance of the law is not an excuse to criminal
liability,24 mistake of fact may be an exception to this general rule. The
defence of mistake of fact which is provided under both Penal and
Criminal Codes25 is based on the premise that there is no liability
without fault. It is available to an accused who can show that he
committed the

23
This may be based on the fact that at the time of the
commission of the offence, the accused lacked the necessary
criminal mind.
24
Section 45 of the Penal Code, and section 22 of the Criminal Code
25
Ibid.
203
An Appraisal of Legal Pluralism in the Administration of Penal and
Criminal Codes in Nigeria: A Call for Harmonisation
offence without the necessary guilty intent. There seems to be
unanimity among scholars that the defence lays down a subjective
test.26
The general ingredients of this defence under both codes are
that, first, the accused must show that even though he committed the
offence, he lacked the requisite guilty intent as a result of a mistaken
belief in a set of facts; and second, the facts must, at the same time,
have been held in good faith by the accused. The phrase “good faith”,
according to section 37 of the Penal Code, means an act done with
“due care and attention.
It is submitted that the definition of mistake of fact under the
Criminal Code should be adopted as it accords with the true concept
of criminal responsibility, i.e. what the accused knows and not what he
is presumed to know.

ii.The Defence of Accident

The defence of accident is also recognized under
both Penal and Criminal Codes.27 An accident is something which
happens outside the ordinary course of events. An effect may
therefore be regarded as accidental when the act by which it is caused
is not done with the intention of causing it and when its occurrence is
so unexpected that a person of ordinary prudence would not be
expected to take reasonable precautions against such
28
occurrence. For the defence of accident to avail an accused person
the act which would have amounted to an offence must have been
done by accident or results from an accident.
The Penal Code, unlike the Criminal Code, provides further
requirement to the effect that the act leading to the accident must have
occurred in the course of a lawful purpose and carried out in a lawful
manner. Thus in the case of Abdulbaki v. Katsina Native Authority,29 a
person was killed while engaged in an unlawful fight. The High Court
held on appeal that the defence of accident was

26
Chukkol, K S. Op.cit.,n.3, pp.88-89. See also Ocheme, P. Op.cit., n.7,
pp.106-107.
27
See section 48 of the Penal Code and Section 24 of the Criminal
Code respectively.
28
Richardson, S.5 (1987) Notes on the Penal Code Law, Ahmadu Bello
University Press, Zaria , p.48
29
(1961) N.N.C.N, p.12
204
Dalhat A. Idris JCL 4/1

not open to the appellant unless he could show that he acted in the
lawful exercise of his right of private defence.
The Penal Code also requires that the act from which the harm
arises must be one in which the accused had exercised due care and
caution. In other words, the act leading to the accident must have been
done in good faith.
Conversely, section 24 of the Criminal Code provides
unequivocally that motive is immaterial in the application of this
defence. Thus, in Richard Igago v. The State30 it was held that for an
event to qualify as an accident under section 24 of the Criminal Code,
it must be a surprise to the ordinary man of prudence, and that is a
surprise to all sober and reasonable people.
It is suggested that the provisions of the Penal Code on what
amounts to an accident is to be preferred because it requires the
accident to have resulted from doing “a lawful act in a lawful manner.”
This enables the defence to be available only to persons who carried
out legitimate acts.

iii. The Defence of Compulsion

The defence of compulsion, as provided under both penal and
Criminal Code,31 is one which negatives criminal intent. The reason is
that the accused has no intent of committing the offence but for the
act or influence of another party in the form of threat or injury to the
person of the accused.
For the defence of compulsion to succeed, the accused must
establish that although he committed the offence he has done so in
order to save himself from threat of instant death. The Criminal Code,
unlike the Penal Code, recognizes the threat of grievous harm.32 Again,
the threat of death or grievous harm, as the case may be, must be by
some person actually present.33 Likewise, the person issuing the
threat must be capable of executing it and the accused must
reasonably believe that should he fail to do the desired act, the harm
threatened would befalls him.34

30
28 (1999) 14 NWLR (pt 637) 1 at 24
31
See Section 57 of the Penal Code and Section 32(3) of the Criminal
Code respectively
32
Ibid.
33
Ibid.
34
Ibid.

205
An Appraisal of Legal Pluralism in the Administration of Penal and
Criminal Codes in Nigeria: A Call for Harmonisation
One important thing to note is that all other forms of threat,
aside from death or grievous harm are not covered under this defence.
Equally important here is that the threat which compel the accused to
commit the offence must be directed at him and not to a third party.
Thus where the accused commits the offence as a result of a threat to
his wife or child the defence would not avail him.
The above position seems somewhat unfair, considering the
value which the Nigerian society places on family relationships. It is
submitted that the defence should be made to extend to offences
committed to save members of the accused’s immediate family.35
It is interesting to note that the defence of compulsion is not
available if the offence which the accused is threatened to commit is
homicide (murder) or grievous harm. Similarly, the defence is not
available where the accused deliberately put himself in a situation
where he will be subjected to threats.
It is submitted that the exclusion of the threat of grievous harm
to the offender by the Penal Code is somewhat perplexing and
puzzling, considering that threat of grievous harm can in reality by
considered as potent as a threat to death.36 It is, therefore, suggested
that the provision of the Criminal Code in this regard is to be preferred.
It is further suggested that the provisions of both codes which
prevent reliance on the defence in case where the threat is to a third
party (i.e. close relations to the accused such as his mother, father,
wife or even his children) should be reconsidered.37 This is in view of
the fact that threat to loved ones can, in most cases, be even more
compelling than a threat to the accused himself.

iv. The Defence of Necessity

The defence of necessity has been recognized in Nigerian
criminal justice system.38 To rely on the defence, the accused must
show that the act done was to prevent further harm or injury to his
person or other persons, or

35
See the proposed Unification of Criminal Laws of Nigeria, retrieved
from www.nials.org, on 10/5/2015 at 8:31 pm.
36
Ibid., see also Chukkol, K S. Op.cit., n.3, p.255
37
Ibid. pp.253-254
38
Section 49 of the Penal Code and Section 26 of the Criminal Code
206
Dalhat A. Idris JCL 4/1

property. Similarly, the accused must show that the course of action
embarked upon by him was reasonable and that he acted in good
faith.39 The action of the accused is thus measured against the reaction
of an ordinary person in the same circumstances. In other words, the
test adopted by the Codes is objective one.
Interestingly, the Penal Code provides explicitly that where the
action requires care and skill, the accused must have exercised the
required care and skill. This, it is submitted, appears to be
unnecessary, in view of the fact that the preceding provision makes
“reasonableness in carrying out the act” a factor.
Again, whereas under the Penal Code the defence of necessity
can only be pleaded where the offence is not punishable with death,
under the Criminal Code the defence covers both capital and lesser
offences.
It is submitted that the provisions of both codes as regards the
defence of necessity is somewhat vague and not properly defined40. In
providing for harmonization of this defence, it is suggested that the
provisions of both codes need to be more definite.

v. The Defence of Intoxication

This defence is designed to negate the existence of criminal
intent on the part of the accused, on the grounds that as a result of the
intoxication, the requisite criminal mind for the offence was absent.
Under both penal and Criminal Codes, intoxication as a general
rule, is not regarded as a defence to a criminal liability, except under
the circumstances specifically provided for.41 Both codes, however,
recognize involuntary intoxication as a defence to a criminal charge.
For the defence of intoxication to succeed, the person charged
must not know that what he was doing was wrong or contrary to law,
and that the state of intoxication was caused without his consent by
the malicious or negligent act of another.
Interestingly, the Criminal Code further provides for a situation
where the accused himself causes the intoxication but mistakenly, and
that he became temporarily

39
Chukkol, K.S. Op.cit., n.3, p.265
40
See the proposed Unification of Criminal Laws of Nigeria,
Op.cit., n.34
41
Section 44 of the Penal Code and Section 29 of the Criminal Code

207
An Appraisal of Legal Pluralism in the Administration of Penal and
Criminal Codes in Nigeria: A Call for Harmonisation
insane by reason of the intoxication. Where the accused fail to
establish the loss of his capacities under the Criminal Code, the
defence of intoxication will fail.
Ostensibly, the Penal Code provides that a person who
voluntarily became intoxicated is presumed to have the same
knowledge as he would have had if he had not been intoxicated. This
provision, which is irrebutable, appears to negate the possibility of the
accused to rely on the defences of mistake or provocation. It is,
therefore, suggested that the Criminal Code provision is to be
preferred.

vi. The Defence of Insanity

A plea of insanity under both penal and Criminal
Codes is relevant as a defence at a time the offence was committed. 42
Generally, there is a presumption of sanity in favour of every person
unless the contrary is proved.
To raise the plea of insanity under the Penal Code, the accused
must show that at the time of committing the offence he was suffering
from unsoundness of the mind rendering him incapable of knowing
the nature of his act, or that his act is wrong or contrary to law.
Under the Criminal Code, the accused must show, in order to
successfully raise the plea of insanity, that at the time of doing the act
he is suffering from mental disease or natural mental infirmity which
deprives him of capacity to understand what he is doing or that he
lacks the capacity to control his actions or to know that he ought not
to do the act or make the omission.
It is submitted that the provision of the Penal Code as regards
the defence of insanity is wider than the provision of the Criminal
Code. This is because unlike the Criminal Code, it covers such
circumstances like obsession, frustration, depression, nervous
breakdown etc.43It is, therefore, suggested that the provision of the
Penal Code as regards the defence of insanity is to be preferred.

vii. The Defence of Provocation

Man has a natural instinct to react to situations
which may annoy or anger him. Hence, the defence of provocation is
recognized in almost all jurisdictions. The

42
Ibid., Section 51, P.C. and Sec. 28, C.C.
43
Ocheme, P. Op.cit., n.7, p.115
208
Dalhat A. Idris JCL 4/1

defence is associated with the laws of passion and of human

weakness, in circumstances where an offence is committed due to
loss of self-control.44 The defence of provocation is significantly
relevant in the consideration of offences against person. In Nigeria, the
defence is provided for under various sections in both Penal and
Criminal Codes.45
Unlike the Penal Code46 which fails to define the meaning of
provocation but merely states consequences of a successful plea, the
Criminal Code provides for a comprehensive definition.47 Under the
Criminal Code, provocation is an absolute defence to the offence of
assault48 and reduces the offence of murder to manslaughter.49 The
Penal Code does not recognize the defence as an absolute defence to
assault50 although, like the Criminal Code, it reduces culpable
homicide punishable with death (murder) to culpable homicide not
punishable with death (manslaughter).51
From the various sections of the codes, in other to rely on the
defence of provocation, the accused must show the following
cumulative ingredients:
a. The victim offered a wrongful act or insult to the accused or any
person in a special relationship with the accused;
b. The wrongful act or insult to the accused is one capable of
making a reasonable man to lose his self-control;
c. The accused, in fact, lost his self-control;
d. The accused must have acted suddenly and before his
passion cooled; and
e. The retaliation must be proportionate to wrongful act or insult.
Thus were the force used by the accused is disproportionate to
the provocation

44
Ibid., p.130
45
Sections 283, 284, 285 and 318 of the Criminal Code. See also
sections 222(1) and 266 of the Penal Code.
46
Section 222(1) of the Penal Code
47
Section 283 of the Criminal Code
48
Ibid., section 284
49
Ibid., section 318
50
Section 266 of the Penal Code
51
Ibid., section 222(1)

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An Appraisal of Legal Pluralism in the Administration of Penal and
Criminal Codes in Nigeria: A Call for Harmonisation
offered, the defence will fail as was decided in the
case of Shande v. The State.52
It is submitted that the element of proportionality contradicts
the essence of the defence as a person who has lost his self-control
as the degree of response to wrongful acts varies from person to
person. It is, therefore, suggested that less prominence should be
given to this ingredient by expunging it from the law.
It is recommended that the provision of the Criminal Code on
provocation is to be preferred. This is because apart from the fact that
the Criminal Code provides for a definition of provocation, the
elements of the defence closely follow the section containing the
elements of the defence.

viii. The Defence of Consent

Consent as a defence occurs where the victim
permits the doing to him of the act subsequently complained of. The
Penal Code provides copiously for the defence in sections 53 and 55
in contrast to the marginal provision in relation to the defence in
Criminal Code regarding some specific offences such as rape in
section 258, sexual assault in section 261 and cases of assisted death
in section 203. Thus, the Criminal Code does not contain elaborate
provisions on this defence.
To rely on the defence, the accused must show that the act,
injury or hurt to the victim occurs after the victim has voluntarily given
consent to the act. The consent may be expressed or implied. 53 The
Penal Code makes it very clear that the defence does not avail the
accused in relation to acts likely to cause death or grievous harm or
other injuries that occur independent of that which the victim
consented to.54
Section 54 of the Penal Code, like section 203 of the Criminal
Code prohibits reliance on the defence in cases of euthanasia.
It must be stressed that that consent, under the Penal Code, is
only valid when it is not given under fear of injury,

52
(2005) 6 SCNJ 124, pp.131-132. See also Obaji v. The State (1985) 1
ALL NLR 269
53
Section 53(1) of the Penal Code
54
Ibid., section 53(2)
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misconception, intoxication or unsoundness of mind on the part of the

person consenting.55 In other words, the consent must be freely given.
The Penal Code further provides that a person under fourteen cannot
validly give consent.56
The Penal Code goes further to imply consent as a defence in
cases not (amounting to grievous hurt) where a parent or guardian
corrects a child or ward under the age of eighteen; a school teacher
corrects a pupil under the age of eighteen; a master corrects an
apprentice under the age of eighteen and a husband who corrects his
wife where such husband and wife are subject to any native law and
custom in which such correction is recognized as lawful.57
It is recommended, therefore, that the provisions of the Penal
Code which provides specifically for the defence should be adopted.
However, it is suggested that the age of consent under section 39 of
the Penal Code should be increased to eighteen so as to accommodate
the issue of consent of persons above the age of fourteen but less than
eighteen.

ix. Act of Public Officers

It is trite that acts done by public officers in the course of their
duty and in good faith are not normally questioned in a court of law.
Both the Penal and Criminal Codes provide for protection of public
officers such as the police and judicial officers in the exercise of their
lawful duty.58
The main distinction between the provisions of the Penal Code
and the Criminal Code in providing for justification or excuse for
officers carrying out their function is the requirement under the Penal
code that the exercise may be with the belief in good faith that he has
such a power. This aids the protection of officers who in an attempt to
genuinely carry out their functions fall foul of the law.
It is recommended that this requirement be included in the
Criminal Code in all sections relating to public officers.

55
Ibid., section 39
56
Ibid.
57
Ibid., section 55(1)(a)-(d)
58
Ibid., section 46. See also section 31 of the Criminal Code.
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Offences Against Person
The criminal justice system in Nigeria provides for the general
classification of offences against persons. These offences refer to
those acts which cause injury to persons or even death. The offences
include, but not limited to, assault, homicide (murder) and
manslaughter, among others.

i. Assault
An assault is any intentional act carried out by the offender
which causes the complainant to believe violence against his person.59
The essential ingredient of the offence of assault is the act which
causes apprehension such as pointing a gun or raising a stick and the
use of menacing words which indicate that the accused intends to
attack the complainant.
Whereas the Penal Code distinguishes between assault and
battery,60 the Criminal Code does not expressly distinguish assault
and battery. The approach of the Criminal Code in the general
definition of assault is to be preferred. This is because assault is
usually followed by battery and the term is used commonly to cover
both assault and battery. It is suggested that the distinction between
“assault” and battery should be reflected in the punishment as
contained in the Criminal Code.
Both the penal and Criminal Codes have various categories of
assault which, in our opinion, should be maintained. Of particular
interest is the provision of the Penal Code on assault or criminal force
to prevent public servants from discharging their duties. Whereas the
provision of the Penal Code refers to public servants, the Criminal
Code refers to serious-assault to protect persons from the execution
of their lawful duties.61 Apparently, the provision of the Criminal Code,
in this respect, is wider as it seeks to protect persons in the course of
their lawful duties, whether they are public servants or not. It is
suggested that an amendment of the Penal Code to include such
persons is to be preferred to the rather over-elaborated provisions of
the Criminal Code.

59
See the proposed unification of criminal laws in Nigeria, op.cit. see
also Chukkol, K.S. Op.cit.,n.3, p.315
60
See section 262 and 264 of the Penal Code respectively
61
See section 172 of the Criminal Code law of Lagos State, 2011.
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ii.Homicide (Murder)
Homicide is the unlawful killing of one person by another.62 It
consists of murder or manslaughter, according to the circumstances
of the case.63
In all jurisdictions, the offence of murder is regarded as a very
serious offence64. In Nigeria, both the penal and Criminal Codes
provide copiously for this offence, although it is referred to as
“culpable homicide punishable with death” under the Penal Code.
The Criminal Code provides for an elaborate definition of the
offence, as opposed to the rather straight forward and less confusing
definition under the Penal Code.65
The major ingredients of the offence of murder under Criminal
Code is causing death with the intention to cause death, or causing
death with the intention to cause grievous bodily harm to the
deceased.66
It is submitted that the provisions of the Penal Code appear to
be more apt in providing for the offence of culpable homicide
punishable with death, as the ingredients of the offence are better
presented. Under the Penal Code,67 culpable homicide is committed if
the doer of the act knows or has reason to know that death would be
the probable and not a likely consequence of his act. Both the words
“probable” and “likely” represent degrees of chances, with “probable”
having a higher chance of occurring than “likely”.68 It is submitted that
the words adopted by the Penal Code are more appropriate and should
be preferred.
The Criminal Code provides for the offence of conspiracy to
commit murder which is not provided for under the Penal Code. It is
therefore, suggested that this offence be included in the Penal Code.

62
Garner, B. H. (2009) Black’s Law Dictionary, Ninth edition, west
Publishing Company, p.802
63
Ibid.
64
Owoade, M. A. (1985) Law of Homicide in Nigeria, O.A.U Press
Ltd, Ife, p.11
65
See Section 22 of the Penal Code.
66
Section 316(a) and (b) of the Criminal Code
67
Section 221 of the Penal Code
68
Chukkol, K S. Op.cit., n.3, p.300

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iii. Manslaughter (Culpable Homicide not Punishable with Death)
Manslaughter is the unlawful killing of a human
being without malice aforethought.69 The offence can be conveniently
classified into voluntary and involuntary manslaughter.
Voluntary manslaughter occurs when the accused though has
the requisite mental and physical act to be convicted for the offence of
murder, but for the fact that his conduct is excused by law in particular
circumstances.70 For instance, killing as a result of grave and sudden
provocation is regarded as voluntary manslaughter.71 Similarly, killing
as a result of the use of excessive force in private defence is voluntary
manslaughter.72 The same thing applies to the killing of a consenting
victim.73
It is submitted that the Penal Code has provided a more
simplistic definition of the offence of voluntary manslaughter by
provocation than that provided for in the Criminal Code. It is, therefore,
suggested that the provision of the Penal Code should be adopted in
this regard.
Involuntary manslaughter, on the other hand, occurs where the
accused causes death in circumstances where he did not foresee
death as a probable consequence of his act, but due to some blame
worthiness on his part, death of the victim ensues. It could be termed
killing as a result of negligent or rash act.74
The ingredient of the offence of involuntary manslaughter
consists of an unlawful act which creates the risk of physical harm and
gross negligence or recklessness as to the risk of such harm.
The Penal Code75 provides for the offence of infanticide which
is the intentional killing by a woman of her own child under the age of
twelve months due to

69
Garner, B. A. Op.cit., n.61, p.1049
70
See proposed unification of Nigerian Criminal Laws, Op.cit., n.34
71
See Section 222 (1) of the Penal Code and Section 223 of Lagos
State Criminal Code Law of 2011
72
Section 222(2) of the Penal Code and Section 225 of the Lagos State
Criminal Code, Law, 2011
73
Section 222 (5) of the Penal Code and Section 224 of Lagos State
Criminal Code Law, 2011
74
Ocheme P., Op.cit., n.7, p.210
75
Section 222(6) of the Penal Code
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disturbance of the mind resulting from child birth. But for this
provision the unlawful killing would have amounted to culpable
homicide punishable with death.
The Criminal Code76 also provides for the offence of
manslaughter under diminished responsibility. This has been
submitted to adequately cover the offence of infanticide. It is
suggested that the provision of the Criminal Code should be adopted
in this respect.

Offences Against Property

Property can be described as anything that is of value to man.
It is, perhaps, the most important possession, apart from the life of a
man in this world.77 It is, therefore, not surprising that criminal
interference with either possession or ownership of property is often
declared punishable in almost all legal systems in the world.
The undue interference with property belonging to another is
declared punishable under both penal and Criminal Codes. Such
undue interference with property under both codes includes, but not
limited to, theft/stealing, forgery and cheating, among others. A brief
analysis of these offences is provided below.

i. Theft/Stealing
The offence of theft/stealing, which are similar in
nature are provided for under both penal and Criminal Codes.78 While
the Penal Code uses the word “dishonestly”, the Criminal Code
employs the use of the word “fraudulently”.
The main ingredient of the offence of theft under the Penal Code
is the intention to dishonestly take or move the property of another
without his consent. The general ingredients of the offence of stealing
under the Criminal Code are, first fraudulent taking of another’s
property which is capable of being stolen, and second, fraudulent
conversion for use of another’s property capable of being stolen. In all
these, there must be the existence of an intention to permanently
deprive the owner of the property stolen.

76
Section 226 of Lagos State Criminal Code Law
77
Chukkol, K S. Op.cit., n.3, p.336
78
Section 286 of the Penal Code and Section 383 of the Criminal
Code.

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It is submitted that the Criminal Code is not only more elaborate
but differs from the Penal Code in one respect. Under the Criminal
Code the fraudulent intent must be to deprive the owner permanently.
Paradoxically, even a temporary deprivation of the owner will amount
to theft under the Penal Code.79 It is, therefore suggested that the
provision of the Criminal Code should be adopted. This is because, in
our view, the phrase “intention to permanently deprive the owner of
the property” adopted by the Criminal Code, should be the important
element of the offence of theft/stealing.

ii.
Forgery
The offence of forgery is provided for under both penal and
Criminal Codes.80 The offence relates to the fraudulent making, sealing
or execution of a document, with the intention of causing it to be
believed that the document was legitimately created, sealed or
executed by the appropriate authority.
It should be noted that the offence of forgery is closely related
to the offence of cheating. As one scholar rightly observed,81 both
offences contain oral and written deception, caused or intended to be
caused by false representations.
The ingredients of the offence of forgery under section 363 of
the Penal Code consist of making a false document or a part of
document with any of the following intents:
a. To cause damage or injury to the public or to any person;
b. To support any claim of title;
c. To cause any person to part with property or enter into any
express or implied contract; and
d. To commit fraud or that fraud may be committed. Unlike the
Penal Code, the ingredients of the
offence under section 465 of the Criminal Code consist of making of
false document through its contents, counterfeit seal, mark, or
representation on a document, knowing such

79
Chukkol, K S. Op.cit., n.3, p.345
80
See Section 363 of the Penal Code and Section 465 of the Criminal
Code
81
Chukkol, K S. Op.cit., n.3

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to be counterfeit. The doing of any of the above must be with the

intention to cause the thing so made to be used in any way or acted
upon as genuine.
It is submitted that the provisions of the Penal Code with
respect to the offence of forgery is more comprehensive and,
therefore, should be adopted.

iii. Cheating
Cheating is the fraudulent obtaining of another’s property by
means of a false symbol or token, or by other illegal practices.82 The
offence of cheating is provided for under both penal and Criminal
Codes.83 Whereas the Penal Code appears to be more elaborate on the
offence of cheating and other related specie, the Criminal Code
provides for both definition and punishment of the offence of
cheating.84
Under both Codes, the ingredients of the offence of cheating
include fraudulent or dishonest representation by words, writing, or
conduct. The person making the representation must know that such
words, writing or conduct are not true. In addition, the representation
must induce a person to deliver or give consent to retain any property
to another person or pay a higher price for property than he would
have paid but for the representation.
A careful perusal of the provisions of the codes would reveal
that the Penal Code provides for an additional ingredient which is
inducement that causes a person to do or omit to act in such a way he
wouldn’t have acted had he not been deceived. Such act or omission
must cause or is likely to cause damage to that person in mind, body,
reputation or property.
It is submitted that the definition of the offence of cheating
under the Penal Code is preferable. This is because it covers not only
the offence as it relates to obtaining goods but acts or omissions
generally.

Offences Against Public Order/Peace

To maintain peace and order in Government, respect for
constituted authority is fundamental. The

82
Garner, B. A. Op.cit.,n.61, p.268
83
Section 320 of the Penal Code and Section 421 of the Criminal Code
84
Ibid.

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An Appraisal of Legal Pluralism in the Administration of Penal and
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offences against public order/peace are of two types, namely:
a. Offences under the penal and Criminal Codes which are under
the legislative competence of the states such as unlawful
assembly and riot; and
b. Other offences against public order such as treason,
treasonable felonies and sedition which are matters within the
exclusive competence of the federal
government.85
Further discussions will be limited to offences against public
order/peace as provided by the penal and Criminal Codes of the states.

i.Unlawful Assemblies and Breach of Peace

An unlawful Assembly is a gathering of people who
conduct themselves in such a manner as to cause persons in the
neighbourhood to fear that the persons so gathered will turbulently
disturb the peace.86 Such people must be at least five or more
according to the Penal Code,87 or three or more persons according to
the Criminal Code88.
It is submitted that the Penal Code provision on the offence of
unlawful Assembly is more elaborate than its corresponding provision
of the Criminal Code. The provisions of both codes as regards the
general offence of riot can easily be harmonized as they are practically
the same. However, the Penal Code provides for specific offences
relating to riots such as rioting armed with deadly weapon89 and
joining an unlawful assembly that has been asked to disperse90 which
are not provided for under the Criminal Code.

Offences that cannot be Harmonized

Certain property offences under both Penal and Criminal Codes
cannot be harmonized. This is as a result of the absence of similar
provisions in both Codes or the over specific nature of such offences.
A brief appraisal of this is provided below.
85
See exclusive legislative list of the CFRN, 1999
86
Chukkol, K S. Op.cit., n.3, p.409
87
Section 100 of the Penal Code
88
Section 69 of the Criminal Code
89
Section 107 of the Penal Code
90
Ibid., Section 110

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A. Offences in the Penal Code but are not Contained in the

Criminal Code
Offences provided for in the Penal Code but which cannot be
found in the Criminal Code include, but not limited to, the following:

i. Brigandage
Brigandage is provided for in the Penal Code91 as an offence of
robbery or attempted robbery committed by five or more persons. The
Criminal Code does not provide for this offence. The reason is that,
under the Criminal Code, whoever commits, aids, counsels or
procures the commission of an offence is treated as the principal
offender.92 It is submitted that the existence of the offence of
brigandage under the Penal Code can be justified for the purposes of
severity of punishment.

ii. Criminal Trespass

The classification of offences relating to criminal
trespass under offences against property by the Penal Code93 is
questioned. This is in view of the fact that, traditionally, trespass is a
tort and is only criminalized if it involves breach of peace.

B. Offences in the Criminal Code but not in the Penal Code

The following are some of the offences provided for
in the Criminal Code which cannot be found in the Penal Code. The
list is by no means exhaustive.
i. Impersonation;94
ii. Fraudulent debtors;95
iii. Electronic data offences;96
iv. Cruelty to animals;97 and
v. Offences relating to ferries and jetties98 Conclusion
91
Ibid., Section 297
92
Section 342 of the Criminal Code
93
Section 342 of the Penal Code
94
Section 378-383 of the Criminal Code
95
Ibid., Section 384
96
Ibid., Sections 385-389
97
Ibid., Section 392
98
Ibid., Sections 397-400

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An Appraisal of Legal Pluralism in the Administration of Penal and
Criminal Codes in Nigeria: A Call for Harmonisation
From the foregoing, it is clear that legal pluralism in criminal
justice system in Nigeria owes its origin to the indigenous system of
administration of criminal justice prior to the period of colonization. In
the North, for instance, the Islamic criminal law of the Maliki School
applied. In the South, however, the customary criminal laws of the
various communities applied.
When the British came, the colonial government understood the
differences in the lives of the people of Northern and Southern Nigeria.
To ensure peaceful co-existence, the colonialists devised ways of
accommodating these inherent differences. The colonialists created
two distinct criminal legal systems - the Penal Code System (for the
North) and the Criminal Code System (for the South). They believed
that there was the need to respect and retain the people’s diverse
culture, religions and belief systems.
Notwithstanding the above, a careful perusal of both codes
would reveal that it has become imperative that the two codes should
be harmonized. It was observed that this will foster national unity. This
is so because the colonial heritage of plural legal systems dealing with
criminal matters has been one of the mechanisms that had
perpetuated the concept of North and South in critical national
discourse.
Undoubtedly, both penal and Criminal Codes bear some
similarities and differences which have been identified and clarified in
this research. For instance, the Criminal Code usually employs mode
of classification of offences which is related to the degree of
punishment attached to the offences. The same cannot be said of the
Penal Code which leaves the severity of the offence to be determined
by the punishment attached to it. On the whole, the rigid classification
of offences by the Criminal Code is unnecessary and the approach of
the Penal Code, in most of its provisions, is preferred and should be
adopted.

220