Corporate Criminal Responsibility – Nigeria in Comparative Perspective
Gabriel Omo Arishe*
&
Samuel Chukwuma Okoli**
Abstract
In spite of vigorous debate on the subject, corporate criminal responsibility is now an established principle of criminal law. The extent of application however differs from country to country; the distinction being the application of either a separate criminal code for corporations or the use of the same criminal provisions to ascribe criminal responsibility to individuals. This paper examines whether the mens rea principle required of an individual is equally applicable to the mens rea of a corporate organization. The paper appreciates the difficulty in ascertaining the efficacy of sanctions on corporate bodies rather than individuals.
1. Introduction
Corporate Criminal Responsibility continues to pose some difficulties in legal discourse. This is so because the concept challenges the basic assumptions underlying criminal law. Legal systems have to some degree incorporated the simple moral idea that no individual should be convicted of a crime unless some measure of subjective fault can be attributed to him. The usual subjective mental state required for successful conviction are intention, knowledge and recklessness. The prosecution is usually required to prove that the accused desired the result of his action – intention; or that he was aware of the particular circumstances in which he acted – knowledge; or that he was indifferent as to the consequences of his action – recklessness. There also exists the objective fault index – negligence. This requires the prosecution to prove that the accused behaviour fell short of that expected of a responsible man even though he had not averted to the risk. Except in strict liability offences, the proof of any of these mental states is essential to holding the accused criminally responsible for an act. Thus, the classic division of the elements of an offence which are actus reus – the wrongful act – and mens rea – the mental state – must be present to ground conviction.
No individual can be amenable to criminal sanctions except if when committing a wrongful act he possesses any of the mental attributes mentioned above. Since these attributes are for natural persons, it was logically, morally and legally tempting to conclude that a legal person – a mere legal abstraction – cannot be amenable to criminal law without re-enacting established tenets of the criminal law. This was more so because of the fictional nature of a legal person – which has no body, arms or legs and could therefore not commit any physical wrongful act on its own. Accordingly, it was doubted whether a corporation could ever be criminally liable. As put by Lord Thurlow, “Did you ever expect a corporation to have conscience when it has no soul to be damned and body to be kicked”?[1] It was therefore accepted that criminal law has to do with natural persons exercising their free will. A legal person not being a natural person has no such free will, but is merely an entity conferred with property owning capability by law with its day to day functioning based on a representative will of certain individuals.[2]
As sound as these objections seem, they are obviously not as tenable today as they were when they were made. With the growth of commerce and the place corporate entities now occupy in modern economies coupled with their effects on man and the physical environment especially, it became imperative to subject corporations to the control of the criminal law. As put by Roland Hefendehl: [3]
The law cannot turn a blind eye to the fact that most economic activities are carried on by corporations. If we were to exempt corporations from any punishment, we would lose the only device available to counteract abuses.
Judicial thinking was soon influenced along this line of reasoning. According to the Supreme Court of Canada in the case of Canadian Dredge & Dock Company v The Queen,[4]
The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that the amenability of the corporation to our criminal law is as essential in the case of the corporation as in the case of natural persons.
In any discourse on corporate criminal responsibility, the threshold questions always remain: should corporations and other collective entities be subject to criminal liability? Is it realistic to have corporate criminal responsibility? Opponents of corporate criminal liability argue that the various aims of the criminal law are better served by prosecuting responsible corporate officers rather than the corporation.[5] Proponents on the other hand argue that prosecution of the corporation better achieves the aims of criminal law and that individual corporate officers should only be held criminally liable. Both proponents and opponents advance their cases on a complex mix of theoretical and practical arguments regarding the nature of corporations, the nature of corporate crimes, the aims and objectives of criminal law, and the purposes and efficacy of corporate criminal sanctions.
Disagreements as to the efficacy of corporate criminal sanctions seem to be at the heart of most of the debate. In spite of this vigorous debate, the practical reality is that corporate criminal liability is now an established doctrine of criminal law, though its application differs from country to country. International instruments, like the European Convention on the Protection of the Environment through Criminal Law which stipulates in Article 9 that both criminal and administrative sanctions and measures could be taken in order to hold corporate entities accountable, have further echoed corporate criminal responsibility. While it is true that corporate criminal liability is now entrenched in the criminal law, the finding in this article is that Nigeria is still lagging behind in terms of adequate legislations and practices in ensuring enforcement. Added to this is the lack of robust academic discussion of the subject in the country. In this article, the state of the law and practice in Nigeria would be analysed vis-à-vis the prevailing theories and practices in other jurisdictions. This paper argues that the two dominant criminal legislations in the country, the criminal code and the penal code, are fashioned to suit the mens rea requirement of an individual and not of a corporation.
In the light of this, this paper recommends that a Corporate Criminal Responsibility Code that would sufficiently address the mens rea requirement for corporate entities should be passed into law by the States and the Federal Government. In doing this, a holistic code which would cover collective entities in general and not just business corporations would serve a better purpose. By so doing, co-operative societies, political parties, and foreign companies exempted from registration can be held liable for crimes which they commit as an entity. A code that takes care of these other entities is preferable so as to avoid the mistake of protecting organisations whose sole objective is non-commercial but may engage in criminal activities.
2. What is Criminal Responsibility?
Before delving into a theory of corporate criminal responsibility, it is necessary to take a cursory look at what constitutes criminal responsibility generally. Paul Fauconnet advances the following general definition: “responsibility is commonly understood to be the capacity of a person to be legitimately subjected to punishment: usually, the terms responsible and justly punishable are synonymous”.[6] This view posits that, it is the capacity to be blamed – and therefore punished – that underlies the notion of responsibility. In the views of Fauconnet, there are two steps to consider in the attribution of responsibility. The first being that the subject must possess the aptitudes of a potential subject of punishment. This is a necessary precondition to the second step, which corresponds to the transformation of this potential liability into actual liability through the occurrence of an event “capable of generating responsibility”.[7] In the general criminal law, however, discussion focuses upon the second branch of Fauconnet’s conception of responsibility – the circumstances which lead to the blaming of an individual. It is apparent that the first arm, the issue of capacity to be blamed or what has been described as “moral personhood”,[8] is rarely addressed. In fact, the principle upon which responsibility is premised, autonomy of the individual, is largely assumed: [9]
The principle [of autonomy] is usually assumed rather than stated in legal doctrine…If… the principle is expressed in terms of sufficient freedom in most situations, making it fair to use concepts such as “desert”, “choice” and “control”, that expresses… the position which criminal law has reached. It also accords with thepolitical underpinning of the law, namely, that citizens should be regarded as rational, choosing individuals whose autonomy the law should respect.
Though this point of view has been challenged by utilitarian thought,[10] criminal law has adopted the view that the imposition of responsibility upon an individual flows naturally from the freedom to make rational choices about actions and behaviour. And quite implicit in this idea of autonomy is the fact that people have causal power over their bodies. One writer considers this an essential attribute by which we understand and evaluate ourselves as persons.[11] Celia Wells goes so far as to assert that the language of both rationality and autonomy assumes a human body.[12] Of course, as with Fauconnet’s analysis, the principle of autonomy is only the starting point of the discussion of individual criminal responsibility. There are various subsequent lines dividing responsibility and non-responsibility of individuals, such as voluntariness, justifications and excuses.[13] Nonetheless, the significant consequence of the principle of autonomy is that the law initially assumes the adult human being to be an apt subject of responsibility.[14]
As Quaid notes correctly, the first challenge to any theory of corporate criminal responsibility lies in the ability to go beyond the confines of the human person and identify other attributes which enable an entity to be capable of being a responsible actor.[15] Indeed, some legal scholars have argued forcefully that corporate liability should neither flow from nor depend on the same arguments as those which serve for individuals.[16] The propositions of these scholars shall be considered subsequently.
3. Corporate Criminal Responsibility
A Corporation is a legal person. It is an aggregation of individuals clothed with a legal personality by a statutory provision[17] or by incorporation. The provision of section 37 of the Companies and Allied Matters Act (CAMA) illuminates the second procedure more:
As from the date of incorporation… the subscriber of the memorandum together with such other persons as may from time to time become members of the company, shall become a body corporate with the power to sue and be sued in its corporate name.[18]
The Act further provides in section 38(1) that:
Except to the extent that the company’s memorandum or any enactment otherwise provides, every company shall, for the furtherance of its authorized business or objects, have all the powers of a natural person of full capacity.
The implication of these provisions is that a corporation assumes a separate legal entity from its members and thus becomes solely responsible for the conduct of its own affairs including enjoying all its rights alone and shouldering its liabilities.[19] To be able to do this, the company must materialize into a functional being through natural persons, who are authorized to act for it. The dictum of Viscount Haldane, LC,[20] aptly explains this:
[A] Corporation is an abstraction. It has no mind of its own anymore than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. That person may be under the direction of the shareholders in the general meeting. That person may be the Board of Directors itself or it may be, and in some ways it is so that that person has an authority co-ordinate with the Board of Directors…. The fault or privity of the company is the fault or privity of somebody who is not merely a servant or agent for which the company is liable upon the footing of respondent superior, but somebody for which the company is liable because his action is the very action of the company.
By this rule, the foundation for corporate liability in tort was established, and thus set the stage for corporate criminal liability. Prior to this time, the common law (of England and Canada) did not generally permit a corporation to be convicted of a crime (as opposed to a regulatory offence). There were exceptions which were based on the doctrine of respondent superior (or vicarious liability). Under this doctrine the master is liable for the conduct of his servant in the course of the servant’s employment. While the common law recognised the appropriateness of vicarious liability for tort compensation, it ordinarily rejected on a general note, vicarious liability for crimes since crimes required mens rea or personal fault.[21] The mere existence of the master-servant relationship was not a sufficient basis for imputing personal fault to the master.
There were however three common law crimes – public nuisance, criminal libel and contempt of court[22] – where the courts did not require mens rea. Nor was mens rea required for a number of regulatory offences created by statute which the courts held to be absolute liability offences. In these four categories of offences, where no mens rea was required, the courts applied vicarious liability, allowing the master to be convicted for the offences of his servant. The master could be either an individual or a corporation. Apart from these four vicarious liability exceptions, corporations were immune from criminal liability under the common law.
Early in the twentieth century, courts began to dismantle this corporate immunity from criminal law. Courts held that words such as “everyone” in criminal statutes could include corporations,[23] that corporations could be punished by common law fines for offences where the only penalty specified for such offences in the statute was imprisonment.[24] Courts further specified procedural rules on how a corporation could be summoned to appear for trial.[25] Courts also rejected the argument that corporations cannot be held criminally liable for offences committed by their officers because committing crimes would be ultra vires (i.e. beyond the scope of the officers’ employment) unless those employees were expressly ordered to commit the act in question.[26] The last and most challenging obstacle to imposing criminal liability on corporations was the difficulty of attributing mens rea (i.e. a blameworthy state of mind) to an abstract, non-human entity.
Ironically the breakthrough on this point came from a civil liability case decided by the House of Lords in 1915.[27] That case concerned a corporation’s civil liability for damages under a statute which afforded the corporation a defence if the damage occurred without its fault. The issue was whether the fault of a director, who was actively involved in the operation of the company, was in law the fault of the corporation. The court held that it was and Viscount Haldane laid down a general principle – the directing mind principle – for attributing fault to a corporation.[28] Thus, corporate criminal responsibility came to be accepted as a settled concept in criminal law. There are now a number of ways and theories by which a corporation can be held liable for a criminal act. These are treated below:
(i) Vicarious Liability
A corporation can be held to be vicariously liable for the crimes of its employees in just the same way that a human employer can be held responsible for the crimes of his employees. As was mentioned earlier, this applies only in statutory crimes of strict liability offences. This is the traditional device for holding corporations criminally liable at common law.[29] For example, in Tesco Stores Ltd v Brent London Borough Council,[30] the defendant company was charged with “supplying” a video with an ‘18’ classification certificate to a youth of 14 in violation of the Video Recordings Act 1984. The statute provided a defence to a defendant who neither knew nor had reasonable grounds to believe that the purchaser had not attained the designated age. Tesco Stores Limited argued that none of the directing mind of the company had the requisite knowledge, even though the cashier who sold the video may have been aware of the boy’s age. The Divisional Court dismissed Tesco’s appeal holding that it was unrealistic to expect those in control of a large company to have knowledge or information about the age of every video purchaser. The knowledge of the employee could properly be attributed to the company as a contrary conclusion meant that the efficacy of the statute would be destroyed. In essence, this interpretation meant that the offence was one of vicarious liability. Similar decisions were reached in the cases of R. v. British Steel PLC[31] and National Rivers Authority v Alfred McAlpine Homes East.[32] Clarkson has clearly stated, “Whether the doctrine of vicarious liability applies or not is a matter of statutory interpretation, taking into account the language, content and policy of the law, and whether vicarious liability will assist enforcement.”[33]
From these analyses, at common law there is no theory of vicarious liability as a basis for corporate criminal responsibility except upon statutory construction. It is not even the position of the common law that vicarious liability be applied as a matter of course to strict liability offences. Thus, in contrast to the cases of British Steel and National Rivers Authority, in Seaboard Offshore Ltd v Secretary of State for Transport,[34] the company was prosecuted under the Merchant Shipping Act 1988. The House of Lords held that as a matter of interpretation of the statute and its policy implications, the company could not be vicariously liable for a breach of duty under the Act for the acts of its servants or agents. Courts in Canada have specifically rejected the vicarious liability approach with respect to determining corporate liability.[35]
The position in Britain and Canada contrasts sharply with the United States’ where corporate criminal liability for federal offences (which are largely but not exclusively regulatory offences) is based on vicarious liability. This assertion is easily supportable with the case of United States v Basic Construction Co. where the Court said:
[A] Corporation may be held criminally responsible for antitrust violations committed by its employees if they were acting within the scope of their authority, or apparent authority, and for the benefit of the corporation, even if… such acts were against corporate policy or express instructions.[36]
(ii) Identification
A corporation can be held criminally liable by the doctrine of identification, also known as the alter ego doctrine.[37] This new form of liability, distinct from vicarious liability, was based on the idea of the corporation itself being identified with the acts of senior officers, rather than being accountable for the wrongdoings of its employees. By this doctrine, the court recognises certain senior individuals as being the corporation itself and the acts of these individuals when acting in the company’s business are treated as the acts of the company.
The identification doctrine was fully received into English Law in a trio of cases in 1944. These cases dealt with various forms of deception perpetrated at senior management levels in the respective corporations.[38] In the discussion on corporate criminal responsibility, there has been surprisingly little judicial analysis of the basis for attributing an actus reus to corporation. Much of the discussion has centred on discovering the mens rea. The actus reus cannot be presupposed on a corporation once a wrongful act is alleged against it since it remains a legal fiction. The identification theory however helps in ascribing both the mens rea and the actus reus to the corporation. Lord Denning explained this vividly in the civil case of H. L. Bolton (Engineering) Co. Ltd v T. J. Graham & Sons Ltd: [39]
A company may in many ways be likened to a human body. It has a brain and a nerve centre which control what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such.
In Canada, corporate liability for many state offences, which include most traditional crimes, is premised on the identification theory. The leading case here is Canadian Dredge and Dock v The Queen,[40] decided by the Supreme Court of Canada. The identification doctrine is actually a modified and limited version of vicarious liability. The identification doctrine holds corporations liable only for the fault of senior corporate employees or officers (i.e. directing minds), rather than for the fault of all employees as occurs under vicarious liability. The identification theory is used to attribute mens rea to the corporation itself, whereas in the case of vicarious liability, no distinct separate “corporate” mens rea by those who control or run the corporation is required. The identification doctrine arose out of the perceived need to find a way to hold corporations liable for mens rea offences. It was created as a pragmatic median rule between the extremes of total vicarious liability for all criminal acts and no corporate liability unless the Board of Directors expressly authorized the criminal acts. However, the crucial question under this doctrine is, which employees or officers of a corporation are its directing mind for the purpose of the identification doctrine?
In answering the question put above, it is noticed that the directing mind under English law is narrower than that obtainable under Canadian law. Thus, in Tesco Supermarkets Ltd v Nattrass,[41] the House of Lords held that because of the strict controls exercised by the company over its branch managers they were left with so little power that they could not be regarded as part of the “brains” of the company nor were they to be regarded as a directing mind and will. This provides corporations with easy route to escape liability given the geographical spread of modern corporations especially transnational corporations. In this regard companies have escaped liability for activities carried out by weighbridge operators,[42] depot engineers,[43] transport managers,[44] and branch managers.[45] Most disturbing is the decision of the English Court of Appeal in Redfern[46] that European sales manager of Dunlop (Aviation) Ltd was insufficiently senior to be identified with the company.
The courts in Canada differ significantly from English Courts in the application of the doctrine of identification. Courts in Canada believe that a corporation may have more than one directing mind. Where corporate activities are geographically widespread or diffuse, it will be virtually inevitable that there will be delegation and sub-delegation of authority from the corporate centre and therefore there will be several directing minds. On this point, the Supreme Court of Canada suggested that the application of the identification doctrine in the English case of Tesco Supermarkets Ltd v Nattrass was too narrow for Canadian realities.[47] Based on this liberal application[48]
- a used-car sales manager who was not a director or officer of the corporation and who defied orders of senior officials by turning back odometers was held to be a directing mind and will for the purpose of holding the corporation liable for fraud;[49]
- and gas price-fixing by a regional supervisor of marketing representatives was held to be the conduct of the company.[50]
The above examples show that the Canadian application of the identification doctrine allows for the directing mind of the corporation to reside in a broader and lower-level group of corporate officials than appears to exist in England under the leading case of Tesco Supermarkets Ltd v Nattrass. However, there has been a recent Supreme Court of Canada case[51] which, although a civil damages case, at least implicitly suggests that in future cases directing minds will only be found at higher levels of authority.[52]
(iii) Corporate Culture
A useful supplement to the theories discussed above has emerged in the United States of America and Australia. This supplement is known as the corporate culture theory. This theory focuses on both implied and express policies of the corporation that influence the manner in which the corporation operates. ‘Corporate culture’ is defined in the Australian Criminal Code Act, 1995 as:[53]
an attitude, policy, rule, course of conduct or practice existing within the body corporate in general or in the part of the body corporate in which the relevant activities take place.
Going by this definition, liability may be imposed where it is found that the individual who committed the unlawful act had a reasonable basis for believing that an authoritative member of the corporation would have “authorized or permitted the commission of the offence.”[54]
In summary, it appears that, unlike the identification theory, there is no requirement to find an individual responsible for an offence as a condition precedent to imposing liability on the corporation for an offence involving intention. From this perspective, the “corporate culture” model emphasizes a form of collective responsibility embodied in the corporation, thereby suggesting that corporate intention is not reducible to the individual intention of employees. However, this broad concept is tempered somewhat by the due diligence defence: if the corporation is the focus, prima facie, of liability, then this liability can shift back to the individual employee when it is proven that the latter lacked “reasonable grounds” to believe that his or her actions would have been permitted.[55] Under this theory, the search is for a corporate fault. The crux of this theory is that “A company should be criminally liable where a crime is authorised, permitted or tolerated as a matter of company policy or de facto practice.”[56]
From our discussion so far, it is clear that it is now possible for a corporation to be convicted for every offence of which a natural person can be convicted though enforceability depends on advancements in a particular jurisdiction. The ability of the courts to do this effectively is however hampered by the seeming impossibility of imposing some sentences – imprisonment and death – on a corporation. It therefore suggests that the only punishment available against corporation is the imposition of fine. The prevailing practice in most countries is either to refuse to convict a corporation when the crime is not punishable by fines; or go further to convict the corporation and substitute fines for an offence that is otherwise punishable by imprisonment alone. These practices preclude corporations from being convicted for capital offences since a fine cannot be substituted for a death sentence upon conviction. A corporation cannot be subjected to bodily punishment: “What?” said counsel in Quo Warranto case, “must they hang up the common seal?”[57]
This raises serious concern as the unavailability of appropriate sanctions for corporation undermines one of the purposes of criminal law which is deterrence. This is even so as fines have little or no deterrent effect on most corporations as they can afford to pay and continue with the behaviour sought to be deterred. Wagner has indeed pointed out that the imposition of fines creates problems mainly because it can be difficult to determine which amount is both fair and effective when punishing a corporate offender; and of course, in countries where the fines are relatively low, companies can include these fines into their operating cost while large fines can drive the company out of business thus causing further unemployment problems.[58]
Clough[59] identifies two problems of sentencing corporations:
- the difficulty of imposing a meaningful fine, and
- the lack of alternative to fines.
The United States has taken the issue of appropriate sanction on corporate liabilities in new and expanded directions. In 1991, Federal Sentencing Guidelines were developed to allow an evaluation and a balancing of the severity of the crime, the pecuniary gain to the corporation resulting from its conduct and the relative culpability of the corporation. The Guidelines also encourage, and of course this is equally important as a sentencing goal, the need to get the corporation to remedy the harm that it has caused.[60]
Fines, restitution orders and orders of probation are parts of the mix in the Guidelines. The Guidelines require that in imposing fines, the wealth of the corporate offender may be taken into account to determine the amount it should be fined. This approach has been criticised on the ground that it runs foul of the law which concerns itself with the proportionality of the fine to the offence committed and not the proportionality of the fine to the wealth of the offender. It has therefore been opined that a corporate offender can appeal on grounds of excessive and even discriminatory punishment where the fine so much exceeds that which a natural person could be fined in the circumstance.[61] It seems to these writers that such an appeal can only succeed if two statutory conditions are absent:
- the specific legal system does not have a separate corporate criminal liability code or provision, unlike Canada and Australia which do have. A country like Nigeria does not have a separate corporate criminal liability law.
- the corporate criminal liability law does not make assessment of the wealth of the corporate offender a factor in determining the amount it should be fined.
Except for a few countries like the United States, most countries still stick to the inadequate punishment of fines as the only punishment appropriate for corporations. In the United States the progress made in the aspect of applying sanctions to corporations in addition to fines, include the following which have been developed:
- Adverse publicity: This is provided for in the United States Sentencing Guidelines. Under this, the federal courts may order an organisation, at its (the corporation’s) expense, in the format and media specified by the courts, to publicise the nature of the offence committed, the fact of conviction, the nature of the punishment imposed and the steps that will be taken to prevent the reoccurrence of a similar offence.[62]
- Corporate Probation: This involves the same style of placing a natural person under probation. The difference is only that corporate probation may extend beyond the undertaking to be of good behaviour to include conditions aimed at organisational change like compelling the organization to undertake an internal investigation into the causes of the offence; to take appropriate internal disciplinary procedures or file a satisfactory compliance report. It may also include a condition of community service.
- Remedial Condition: This involves a system of compelling the corporation to repair the harm done by its criminal act. This could be in form of community service such as cleaning up, if it was an environment.[63]
4. The Nigerian Experience
The Criminal Code and the Penal Code make no special provision concerning the criminal liability of corporations. Both codes are based on the concept of individual guilt. A corporation can however be made criminally liable by the express wording of a particular statute.[64] In R. v Anglo-Nigerian Tin Mines Ltd,[65] it was held that a firm could be prosecuted for certain offences under the old Minerals Ordinance. The question remains, what is the nature of the general principle of corporate liability where such liability is not expressly imposed?
In answering the poser above, the provisions of CAMA and the attitude of the Nigeria courts would be considered. Corporate criminal prosecution is not impossible under the Criminal Code, though. Practically every offence in the Code begins with the words “Any person who….” The definition of “person” in the Interpretation Act[66] includes “any company or association or body of persons corporate or unincorporated.” Under the old Interpretation Act this interpretation could only apply if there was nothing in the subject or context repugnant to such a meaning.[67] Thus, in R. v Opara[68] it was held that the subject-matter of section 100 of the Criminal Code (an offence described as “Public Officers Receiving Property to show Favour”) was such that it was repugnant to define “person” so as to include corporations. In extensive obiter dicta the court also thought the same rule to apply to all the other offences in chapter XII (relating to corruption), and also to section 319 (providing the punishment for murder) and section 390 (providing the punishment for stealing). It seems that the court took the view that many offences cannot be committed by a corporation. The repugnancy provision has however gone out of the Interpretation Act. It is indeed doubtful whether courts of the present day or in the future will take so limited a view of corporate liability in criminal law.[69] As a matter of fact, corporations have been convicted in Nigeria without any question being raised whether such convictions were repugnant to the context or subject-matter of the offences. [70]
The argument that mens rea cannot be attributed to a corporation was specifically rejected in A. G. (Eastern Region) v Amalgamated Press.[71] In convicting the accused company, Ainley C.J. said:
I make no doubt that a corporation can have knowledge of the falsity or otherwise of that which is published in a newspaper, and a corporation, through its agents, is clearly capable of publishing newspapers. I cannot see, therefore, why a corporation is incapable of publishing in a newspaper that which the corporation knows, or has reason to know is false. (Emphasis ours).
Since a corporation has no physical existence, the will of the corporation for the purposes of criminal liability must be found in some human agent. The difficulty is to decide which officials would be held to be possessive of the corporate will. It has been argued that Nigeria’s CAMA has done away with the circuitous and painstaking way of determining whose acts could be imputed to corporations.[72] Section 65 of the Act provides:
Any act of members in general meeting, the board of directors or of a managing director while carrying on in the usual way the business of the company shall be treated as the act of the company itself and the company shall be criminally… liable therefor to the same extent as if it were a natural person.
It was further stated that to a superficial observer, the Act follows the Tesco Supermarket Case view of the directing mind. But that a holistic view of the Act would show that those for whose acts a company can be liable in Nigeria are actually broader than that envisaged in Tesco Supermarket. This, it was asserted, could be achieved by reading section 63 (1) of the Act which provides:
A company shall act through its members in general meeting or its board of directors or through officers or agents, appointed by or under authority derived from the members in general meeting or the board of directors.
And so if all the persons mentioned in section 63 can act for the company, it follows that they can also, by their act, make the company personally liable.[73] It was stated further that the ambit of liability under the Act even extends beyond those who are actually appointed to act for the company to those who though not appointed by the company, are deemed under certain conditions to be officers of the company. Section 245(1) of the Act which defines a ‘director’ to include “any person on whose instructions and directions the directors are accustomed to act” – a shadow director – was cited as an example.[74]
It is the view here that section 63 (1) cannot be read as an adjunct to section 65 for determining the actus reus nor even the mens rea for the purposes of corporate criminal liability. The Companies and Allied Matters Act (CAMA) is not a corporate criminal liability code but a commercial code that regulates commercial activities and liabilities majorly in the realm of civil law and sparily in criminal law. In Nigeria, company liability for tort committed by servants is well recognised and settled. The relevant consideration is not as much of status as whether the servant was acting in the authorised master’s business of which he was held out as authorized as held by the Supreme Court in Ifeanyi Chukwu Osondu & Co. Ltd v Soleh Bonch (Nig.) Ltd.[75] Similarly, the act of the employee of the company done in the course of his employment renders the company vicariously liable irrespective of the branch from which the action emanated.[76] But it is a principle of interpretation of statute that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue.[77]
Also, it is a well established principle that where the provisions of a statute are clear and free from ambiguity, the position of the law is that those words shall be so construed as to give effect to their ordinary or literal meaning, and enforced accordingly.[78] Section 65 has exhaustively provided the basis for corporate criminal liability under the Act thereby excluding the civil principles of vicarious liability which have been explained. There cannot be a holistic reading of a commercial code like CAMA to impose criminal liability on other officers not named in the particular section or sections where criminal liability was expressly or impliedly mentioned. The mens rea and actus reus for the purpose of corporate criminal liability can be determined based on section 65, and not together with section 63, nor with section 245(1) which defines a shadow director. A close look at section 65 shows that it not only follows Tesco Supermarket’s view of the directing mind; in the case of corporations with large geographical spread, it creates a statutory escape from criminal liability. This is so because not only did the Act limit those who are the directing mind, it also supports the proposition that only acts of the directing mind can lead to corporate blameworthiness.[79]
Another writer had opined that by a combined reading of sections 65 and 66 of CAMA, a company can be made criminally liable for the acts of its officers.[80] Section 66 provides:
- Except as provided in section 65 of this Act, the acts of any officer or agent of a company shall not be deemed to be acts of the company unless –
- The company, acting through its members in general meeting, board of directors, or managing director, shall have expressly or impliedly authorized such officer or agent to act in the matter; or
- The company, acting as mentioned in paragraph (a) of this section, shall have represented the officer or agent as having its authority to act in the matter, in which event the company shall be civilly liable to any person who has entered into the transaction in reliance on such representation…
Section 66 is concerned about acts of agents and officers who have the express or implied authority of those mentioned in section 65. What would be the effect of any wrongdoing on the part of such agents and officers on the company? According to section 66(b) “…the company shall be civilly liable”. It follows that section 66 is limited to civil liability only. If the intention was to include criminal liability, then this has not been expressly put in that section.
The Criminal Code and the Penal Code on their parts are grossly inadequate for convicting and punishing corporations because they are too expressive of human guilt. One scholar had said that, under the criminal code, with regard to those offences which a company cannot normally or directly commit because of its artificial nature, it is possible for it to be liable under section 7 for aiding, counselling or procuring the commission of the crime.[81] Given the nature of the criminal code with its emphasis on human guilt, it remains to be seen how this is possible. Can a corporation be liable for aiding, counselling or procuring rape, stealing or even homicide? It should be emphasised that the common law of crime including corporate criminal liability does not apply in Nigeria.[82] What operates, and the advancements, in other jurisdictions cannot apply in Nigeria given the present state of the law. The only sanction against corporate offenders in Nigeria is fine. Ainley C.J declared that a corporation cannot be charged with an offence the only punishment for which is imprisonment.[83] In R. v Service Press Ltd de Comarmond S. P. J. said: “The contemnor being a limited company I cannot have recourse to imprisonment which, I consider, would have been a salutary lesson.”[84]
In the light of these shortcomings, the Nigerian Law Reform Commission needs to come out with a Corporate Criminal Responsibility Code that would be passed into law by the States and the Federal Government. In doing this, a holistic code which would cover collective entities in general and not just business corporations would serve a better purpose. By so doing, cooperative societies, political parties, and foreign companies exempted from registration[85] can be held liable for crimes which they commit as an entity. A code that takes care of these other entities is preferable so as to avoid the mistake of protecting organisations whose sole objective is non-commercial but may engage in criminal activities. Collective entities other than business corporations have been charged or convicted of criminal offences in Canada. Examples include:
- municipal corporations,[86]
- non-profit corporations (including religions corporations),[87]
- incorporated associations,[88]
- trade unions,[89] and
- Societies.[90]
The sentencing guidelines of the United States may serve as a guide in any proposed reform which though must take into cognisance the level of industrial and socio-economic development of the nation. As to the model to be adopted by the country in her reform, the Canadian version of the identification theory with an admixture of the principle of aggregation, that is, recognition of aggregate behaviour for the purposes of corporate criminal liability, is suggested. The corporate culture model is yet to be tested in many jurisdictions. Nigeria may thus not fair well in experimenting it.
5. Conclusion
Given the growth of large corporations in Nigeria in the areas of telecommunications, oil exploration, pharmaceutical and other areas coupled with allegations of corrupt and harmful practices and other criminal allegations against them one is compelled to adopt the views of Ferguson in relation to Nigeria that: [91]
…the optimum solution is to allow for the prosecution of both the corporation and responsible individuals within the corporation, while at the same time providing courts with a broad range of sanctions to impose on the corporate offender.
It needs be added though that in doing this, an effective mechanism for pursuing corporate deterrence must be evolved.
This work does not pretend to put an end to the debate over the practically now well established concept of criminal responsibility. The debate may as well continue among scholars for some time. In fact, the bench has joined in the debate. Chief Justice Lamer of the Supreme Court of Canada had said in R. v. Wholesale Travel Group said: [92]
In my opinion, when the criminal law is applied to a corporation, it loses much of its “criminal” nature and becomes, in essence, a “vigorous” form of administrative law.
That opinion proceeds from an individualistic and moral view of criminal law. Only a non-moral approach can be adopted to support corporate criminal responsibility. Such an approach, which is what is advocated here, helps to avoid entering the debate of whether corporations make truly moral choices when choosing one course of action over another. Fisse puts our position more poignantly thus:
indeed , if one believes that offences are “sins with legal definitions” … then one cannot believe in corporate criminal liability; corporations lack a conscience in any real sense and hence are incapable of committing sinful offences.[93]
However, Wells prefers the more neutral term “accountability” to describe the corporate capacity to be blamed.[94] She seems to find support in Fisse’s ‘Accountability Model.’[95] Quaid sums it all by saying that the basis for corporate criminal liability must be found beyond the individual. She argues that for corporate responsibility to exist there must be corporate reasons for a given action, irrespective of those of the individual actors involve. She espoused the twin elements of intentionality and intention. According to her, “intentionality requires an aptitude for undertaking action on the basis of cognitive choices or decisions”.[96] This could be found in the corporate policy and structure of the corporation. ‘By contrast, corporate intention refers to the mental state to be established in a given state for a given offence’.[97] Theoretically, this formulation has its own short-coming because ‘corporate intention seems somehow to be a tarnished illegitimate offspring of human intent.’[98]
As already admitted, the debate is an unending one as far as the theoretical underpinning of corporate criminal responsibility is concerned. For policy purposes, however, corporations are not individuals, with moral capabilities; they are – using the time honoured cliché – legal persons; legal fiction, if one likes – who can commit offences due to their activities. As advised by the Law Reform Commission of Canada:
As a society we face the difficult problem of coping with the detrimental effects of corporate activities…There is … a need for exerting controls over corporate processes and for developing policies that will keep the interests of corporations in line with public considerations.[99]
Nigeria must therefore come out with legislations that would lucidly provide for corporate criminal responsibility in her legal system.[100] The inadequacies of the current laws, namely, CAMA, the Penal Code and the Criminal Code have been pointed out. What is required is a corporate criminal responsibility legislation that is fashioned to balance the conflicting interests of society – the need for protection from harm on the one hand, and the need for increased commercial activities, thereby fostering economic growth, on the other hand.
* LL.B (Hons), LL.M (Benin) B.L.; PhD (Benin); Lecturer, Department of Public Law, University of Benin, Benin City, Nigeria. e-mail: arishe@uniben.edu.
** LL.B (Hons), LL.M (Aberdeen) Barrister and Solicitor of the Supreme Court of Nigeria.
[1] Quoted in G. Williams, Criminal Law (2nd edn.) (London: Stevens & Sons Ltd., 1961) at p. 856. Williams stated that perhaps, Lord Thurlow had in mind the case of Sutton’s Hospital (1612) 10 Co. Rep. at 326, 77 ER at 973; where it was held: “they cannot be ex-communicated, for they have no souls.”
[2] M. Wagner, “Corporate Criminal Liability: National and International Responses” Commonwealth Law Bulletin Vol. 25 (1999), pp. 600-625.
[3] R. Hefendehl, “Corporate Criminal Liability” cited in E. A. Osaigbovo, “Corporate Criminal Responsibility: Problems and Solutions,” Seminar paper presented at Comparative Criminal Law LL.M Class, 2002/2003 Session, at Faculty of Law, University of Benin, Benin City, Nigeria.
[4] [1985] 1 SCR 662; [1985] 19 CCC (3D) 1.
[5] For an elaboration of some of the views of opponents, see M. W. Caroline, “Corporate Criminality and the Courts: Where are They Going?” Crim. L.Q.Vol.27 (1985), pp.232-254 at p. 237; E. Lederman, “Criminal Law, Perpetrator and Corporation: Rethinking a Complex Triangle” J. Crim. L. & Criminology, Vol. 76 ( 1985), pp. 285-340; and H. Glasbeek, “The Corporate Responsibility Movement – The Latest in Maginot Lines to save Capitalism” Dalhousie L.J. Vol.11 (1988), pp. 363-402.
[6] P. Fauconnet, La responsabilite: Etude de sociologie (Paris: Librairie Felix Alcan, 1920), p. 7 [emphasis in original]. The quotations from this source are cited in and translated by P. A. Quaid, “The Assessment of Corporate Criminal Liability on the Basis of Corporate Identity: An Analysis” McGill L. J. Vol. 43 (1988),pp.67-114 at p. 70.
[7] Quaid, ibid.
[8] P. A. French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984), p. 38.
[9] A. Ashworth, Principles of Criminal Law (Oxford: Clarendon Press, 1991), pp. 80-81.
[10] Ibid, at pp. 79-80.
[11] C. Wells, Corporations and Criminal Responsibility (Oxford: Clarendon Press, 1993), p. 63.
[12] Ibid.
[13] Ashworth, above, note 9, at p. 81. These come under defences in criminal law e.g the CriminalCode Cap. C38 Laws of the Federation of Nigeria (LFN), 2004, ss. 24, 25 and 32(3).
[14] Minors, for example, are exempted from criminal liability. The relevant age differs from one legal system to the other. Under s. 30 of the Criminal Code, ibid, a person under the age of seven is not criminally responsible for any act or omission.
[15] Quaid, above, note 6, at p. 71.
[16] See Wells, above note 11 at p. 63; French, above note 8, at pp. 1-47. See also B. Fisse, & J. Braithwaite, “The Allocation of Responsibility for Corporate Crime; Individualism, Collectivism and Accountability” Sydney L. Rev. Vol. 11 (1988), pp.468-499 at p. 476.
[17] See the cases of Canadian Dredge & Dock Company v. The Queen, above, note 4; The Nigerian Bar Association v Fawehinmi (1982) 2 QLRN 190 (C.A) where the courts held that legal personality can be conferred on a body either by incorporation or by creation by, or under a statute.
[18] Cap. C12, LFN, 2004.
[19] Salomon v Salomon (1897) AC 22.
[20] Lennard’s Carrying Co. Ltd v Asiatic Petroleum Co. [1915] AC 705, 713 (H.L.)
[21] R. v Huggins (1730) 92 ER Some earlier cases along this line: Anon. (1701) 12 Mod. 559, 88 ER 1518; R. v. Corp. of London (case of Quo Warranto) (1682) 2 Show. 263; 89 ER 930 “The company cannot act in its own person, for it has no person;” per Lord Cairns in Ferguson v Wilson (1866) LR 2 Ch. App at 89. For further reading, see Williams, above note 1at pp. 853-855.
[22] See, e.g. R. v Great North of England Ry. Co. (1846) 115 ER 1294 and R. v Stephens (1866) LR 1 QB 702 (public nuisance); R. v Holbrook (1878) 4 QBD 42 (criminal libel); and R. v Evening Standard Co. Ltd [1954] 1 QB 578 (contempt).
[23] Union Colliery Co. v The Queen (1900) 31 SCR 81.
[24] R. v Great West Laundry Co. (1900) 3 CCC 514.
[25] Procedural difficulties once impeded the trial of corporations. For example; trial on indictment at assizes or sessions required that the party charged had to be present personally; this was impossible for corporations, which therefore could be tried on indictment only in the King’s Bench where appearance could be by attorney. The difficulty was removed by statute, which allowed corporations to appear by agent at assizes and sessions. See Williams, above, note 1, at p. 853.
[26] “A Corporation,” wrote Pollock “cannot commit crimes for it cannot authorize them.” Quoted in Williams, above note 1 at p. 857.
[27] Lennard’s Carrying Co. Ltd v Asiatic Petroleum Co., above note 20.
[28] See dictum in Lennard’s Carrying Co. Ltd v Asiatic Petroleum Co., above note 20 at 713.
[29] Some of the early cases on this are Mousell Bros. Ltd v London and North-Western Ry Co. [1917] 2 KB 836; Chutter v Freeth & Pocock Ltd. [1911] 2 KB 832; and Griffiths v Studebakers Ltd [1924] 1 KB 102.
[30] [1993] 2 All ER 718.
[31] [1995] Crim LR 654.
[32] [1994] 4 All ER 286.
[33] Quoted in A. Reed and P. Seago, Criminal Law (London: Sweet & Maxwell, 1999), p. 167.
[34] [1994] 2 All ER 99.
[35] See for example Min of Employment and Immigration v Bhatnager [1990] 2 SCR 217.
[36] 711 F 2d 570 at 573 (4th Cir. C. A., 1983). Vicarious liability as a basis for corporate criminal liability has been criticized on the grounds that (1) it is too wide, attributing wrongdoing of all and any employees to the company, and (2) if there is individual liability, corporate liability follows even in the absence of corporate fault, thus leaving no opportunity to explore company policies. See generally, C. Wells, “The Corporate Manslaughter Proposal: Pragmatism, Paradox and Peninsularity” Crim. L. R. (1996), pp. 543-553 at p. 547; E. Colvin, “Corporate Personality and Criminal Liability” Crim. Law Forum” Vol. 6 (1995), pp. 1-29 at p. 8.
[37] See generally, C. Wells, “Corporations: Culture, Risk and Criminal Liability” Crim. L. R. (1993), pp. 551-563.
[38] DPP v Kent and Sussex Contractors Ltd [1944] 1 KB 146; 1CR Haulage Ltd [1944] 1 KB 551; and Moore v Bresler [1944] 2 All ER515. See comments on these cases by G. R. Sullivan, “Expressing Corporate Guilt” 15O.J.L.S. (1995), pp.281-293 at p. 281.
[39] [1957] 1 QB 159, 173. For a further reading on the identification theory in England, see A. Reed, and B. Fitzpatrick, Criminal Law, 4th edn., (London: Sweet & Maxwell, 2009) pp. 170-173.
[40] Above note 4.
[41] [1972] AC 153.
[42] John Henshall (Quarries) Ltd. v Harvey [1965]2 QB 233
[43] Magna Plant Ltd. v Mitchell [1966] Crim LR 394.
[44] Readhead Freight Ltd. v Shulman [1988] Crim LR 696.
[45] Tesco Supermarkets Ltd. v Nattrass [1972] AC 153.
[46] [1993] Crim LR 43.
[47] Canadian Dredge & Dock, above, note 3, at 23.
[48] These and other examples were listed by D. Hanna, “Corporate Criminal Liability Vol. 31 Crim. L.Q. 452 (1988 – 89), pp. 452-479 at p. 464. See also G. Ferguson, “Corruption and Corporate Criminal Liability” at p. 11, paper prepared for the Seminar on New Global and Canadian Standards on Corruption and Bribery in Foreign Business Transactions, Vancouver, Canada, 4-5 February, 1999.
[49] R. v Waterloo Mercury Sales Ltd. (1974)18 CCC (2nd) 248.
[50] R. v Shell Canada Products Ltd. (1990)75 CR (3d) 365.
[51] The Rhone v The Peter A.B Widener [1993]1 SCR 497.
[52] Ferguson, above, note 48, at p. 12. Ferguson revealed that The Rhone was recently applied by the Ontario Court of Appeal in the Criminal case of R. v Safety–Kleen Canada (1997) 114 CCC (3d) 214. The author further noted that The Rhone was not applied in another recent case: R. v Church of Scientology of Toronto (1997) 116 CCC (3d) 1 which was decided by a different Panel of Ontario Court of Appeal judges. The doctrine of identification has been criticised on many grounds amongst which are: (a) Lack of Precision – As the above discussion illustrates, the identification doctrine, or at least the “directing mind” component of it, is still in a state of flux in a country like Canada. Canadian Dredge & Dock and The Rhone have caused a divide in the application of the identification doctrine. (b) The Fallacy of Identification – The identification doctrine is used to attribute criminal responsibility to collective entities. These entities function by group effort not by individual effort, yet the identification theory seems to assume that responsibility for the behaviour of the collectivity can be assigned by looking at the behaviour of key individuals within the group. More importantly it masks the reality that some behaviour may flow from group norms and policy and may be difficult to attribute to any particular individual within the group. As aptly described by Professor Wells, ‘The idea that some people within a corporation act as that corporation while others do not is fundamentally flawed’ – see Wells, op. cit., note 11, at pp. 109-110. As further argued by Ferguson, the conceptual flaw in the identification theory is magnified on a practical level by the possible judicial tendency not to recognise aggregate behaviour for the purposes of corporate criminal liability. He further pointed out that the clearest illustration of this failure to date can be found in ‘Well’s’ [sic] description of the reckless manslaughter prosecution of P. & O. European Ferries (Dover) Ltd. for the deaths arising out of the capsizing of its ferry, the Herald of Free Enterprise’ – see Ferguson, above note 48, at p. 14. It is worth mentioning in passing that the principle of aggregation has been accepted in at least one case in the United States – United States v Bank of New England, 484 U.S. 943 (1987). Ferguson pointed out that another conceptual weakness in the use of the identification theory for establishing corporate criminal liability is ‘the potential difficulty of taking notions of fault which are designed for human behaviour and applying them to a non-human entity with its own unique structure and modes of functioning’ – Ferguson, above note 48 at p. 15.
[53] Quoted from C. M. Little and N. Savoline, Corporate Criminal Liability in Canada: The criminalization of Occupational Health (Filion Wakely Thorup Angeletti, Management Labour Lawyers, 2003): www.lareau-law.ca/corporations.html. (Accessed 20/09/2010) at p. 9 (hereinafter Corporate Criminal liability Discussion Paper).
[54] Little and Savoline, above note 53.
[55] Corporate Criminal Liability: Discussion Paper (March 2002), Canadian Department of Justice, at p. 6. It has been argued that the major flaw of the corporate culture theory is how the court would be able to pierce through a corporate shell to discover a well concealed culture of an accused corporation. For this contention see Osaigbovo, “Corporate Criminal Responsibility: Problems and Solutions,” at 11, above, note 3. It is the view here that for the purpose of criminal liability it is very difficult for a corporation to conceal its culture except it stops acting and it is in a standstill; the attitude, course of conduct or practices of a corporation are easily noticeable. The Federal Government of Canada has rejected the corporate culture model because it discovered that it is an “untested basis for criminal liability” and it is “too vague to constitute the corporate mens rea.” See Little and Savoline, above note 53, at pp. 11 – 13.
[56] J. Gobert, “Corporate Criminality: New Crimes for the Times” Crim. L.R. (1994), pp. 722-729 at p. 728.
[57] (1682) 8 St. Tr. At 1138 cited from Williams, Criminal Law, above note, 1 at p. 853.
[58] See generally Wagner, above note 2.
[59] J. Clough, “Sentencing the Corporate Offender: The Neglected Dimension of Corporate Criminal Liability” cited from Osaigbovo, above note 3, at p. 12. Corporate killing as a form of death sentence or prevention from contact with the community as a form of imprisonment was re-echoed by Osaigbovo, above note 3. But such an action would amount to winding up in Nigeria, and the grounds for winding up are clearly stated in the CAMA, above note 19. Those grounds do not include general criminal offences found in the Criminal Code or the Penal Code which are the predominant legislations on crimes generally in Nigeria. The prescriptions of Osaigbovo are admissible only when legislative provisions to that effect are in operation.
[60] Corporate Criminal Liability: Discussion Paper, above note 55, at p. 10.
[61] Osaigbovo, above note 3, at p. 13. The case of Goke v Police (1957) WRNLR 80, where the court allowed an appeal on the ground of excessiveness of the fine imposed was cited in support of the argument. The same court in that same case said: “the option of a fine is illusory if an accused person has no hope of paying it”. See C. O. Okonkwo, Criminal Law in Nigeria (Ibadan: Spectrum Books Ltd, 1980), p. 39. It is the view here that what the Federal Sentencing Guidelines advocates is not an illusory but a deterrent fine, for corporate offenders.
[62] Clough, above note 59 at p. 14.
[63] Ibid. By the provisions of the Australian Criminal Code Act 1995, corporate criminal responsibility is founded on the model of corporate culture. In Australia, fines, community service orders, good behaviour bonds and suspended sentences have often been handed out to corporate law breakers. See Little and Savoline, above note 53, at pp. 11 & 16. In Canada, fines remain the only penalty for corporate lawbreakers. The Federal Government of Canada has however recommended establishing principles of sentencing unique to corporations. In the United Kingdom fines remain the only sanction. The United Kingdom has made proposals for fines as penalties for the offence of “corporate killing.” However, the courts also have the discretion to require the corporation to take remedial steps in an effort to prevent further tragedies from occurring. See Little and Savoline, above note 53, at p. 16.
[64] As explained by Okonkwo, above note 61, at p. 124, Section 74(5) of the Factories Act, for instance, contemplates the possibility of the commission of any one of the offences it creates by “a company, co-operative society, or other body of persons.”
[65] (1930) 10 NLR 69.
[66] Cap. I 123 LFN 2004. Although the Interpretation Act specifies that corporations are “persons” for the purposes of the criminal law, it does not specify how the law will or should attribute criminal liability to corporations. Ferguson, above note 49, stated that in spite of the codification of Canadian criminal law, the basis for imposing criminal liability in Canada is still dependent on common law principles developed by Judges on a case by case basis. Indeed, section 8 of the Canadian Criminal Code provides that some common law rules and principles apply unless or until they are altered by statute. There is no similar provision in the Nigerian criminal codes. In fact, Nigerian law is to the effect that offences not statutorily provided for cannot be enforced: s. 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 and s. 4 of the Criminal Code Act. Similarly, in the case of Aoko v Fagbemi (1961) 1 All NLR 400 a customary criminal law was refused recognition by the court since it was not in a written law. It therefore follows that wholesale common law principles cannot be adopted in Nigeria for imposing criminal liability on corporations, except upon statutory interpretation.
[67] For more on this see Okonkwo, above note 61, at pp. 124 & 125.
[68] (1943) 9 WACA 70.
[69] Opara has been criticized on the grounds that much of the reasoning in the judgment was unnecessary for the determination of the case and should be regarded indeed as having been included obiter: T. A. Aguda, The Criminal Law and Procedure of the Southern States of Nigeria, (3rd edn.,London: Sweet & Maxwell, 1982) at p. 450. In fact, criminal conviction for corruption have since taken place with companies and their promoters receiving conviction jointly as was with the unreported cases of Federal Republic of Nigeria v Tafa Balogun (judgment delivered by Justice Binta Nyako in 2005 available at http://www.transparencyng.com/index.php? option= com_content&view=article&id=449:-inspector-general-tafa-balogun -convicted-jailed-for-six-months&catid=86:law-crime-a-judiciary& Itemid=151%20) and Federal Republic of Nigeria v Lucky Igbinedion (judgment delivered by Justice Abdullahi Kafarati of the Enugu Federal High Court in 2008 available at http://nm.online nigeria.com/templates/?a=14397). Both accessed 05/11/2013.
[70] See conviction for sedition: R. v Zik’s Press Ltd (1947) 12 WACA 202; R. v African Press Ltd. (1952) 14 WACA 57; Service Press Ltd v A. G. (1952) 14 WACA 176; R. v Amalgamated Press Ltd. [1961] 1 All NLR 199; conviction for contempt of court: R. v Service Press Ltd. (1952) 20 NLR 96. And in Mandilas & Karaberis Ltd. v I.G.P (1958) 3 FSC 20, although the conviction for stealing was quashed on other grounds, there was no suggestion that a corporation could not be convicted of stealing.
[71] (1956-57) 1 ERLR 12.
[72] We are indebted to Osaigbovo, above note 3, for this thoughtful exposition though we differ in opinion.
[73] Osaigbovo, above, note 3, at p. 15; contrast V. Akpotaire, “Liability for Corporate Acts in Nigeria and the Organic Theory: Anything New? Nig. Educational L.J. vol. 4 No. 1 (2001), pp. 83-88.
[74] Osaigbovo, above note 3 at p. 16.
[75] (2003) 3 SC 42 at 79.
[76] Per Karibi-Whyte, J.S.C., in Agbanelo v U.B.N. (2000) 7 NWLR (pt. 666) 534 at 559-560.
[77] See Ogbuanyinyan v Akudo (1979) 6-9 SC 32; Military Gov. of Ondo State v Adewunmi (1988) 3 NWLR (Pt. 304) 139 at 148 – 149.
[78] See African Newspaper of Nig. Ltd v. Federal Republic of Nig (1985) 2 NWLR (Pt 6) 137.
[79] Under the identification theory, the directing mind must commit the actus reus with the appropriate mens rea, but he or she need not be the person who physically commits the act. See Ferguson, above note 48, at p. 8.
[80] C. Okoli, “Criminal Liability of Corporations in Nigeria: a Current Perspective,” J.A.L. (1994), pp. 35-45.
[81] J. A. Orojo, Company Law and Practice in Nigeria (Lagos: Mbeyi & Associates, 1992) at p. 102. From Orojo’s analysis, what attitude the Nigerian courts would adopt is not clear. The Common Law provisions and approach were utilised by one writer in analysing the criminal liability of corporations in Nigeria: D. F. Tom, The Criminal Liability of Bodies Corporate in Nigerian Law (Enugu: Chenglo Ltd., 2005). The author maintained the same views in D. F. Tom, “Corporate Crimes and Liability under Nigerian Laws” Univ. of Benin. L.J. Vol. 11, No. 1 & 2 (2008), pp. 43-69. We differ completely in opinion.
[82] See generally, A.G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan: Spectrum, 1993).
[83] A. G. (Eastern Region) v Amalgamated Press; cited in Okonkwo, above, note 61, at p. 127.
[84] (1952) 20 NLR 96.
[85] Section 56 of the Companies and Allied Matters Act provides for the exemption of some foreign companies from the requirement of incorporation in Nigeria.
[86] R. v City of Sault Ste. Marie (1978) 40 CCC (2d) 353 (S.C.C.).
[87] R. v Church of Scientology (1997) 116 CCC (3d) 1 (Ont. C.A.).
[88] R v Electrical Contractors Association of Ontario (1961) 131 CCC 145 (Ont. C.A.).
[89] United Nurses of Alberta v Attorney General of Alberta [1992] 1 SCR 902.
[90] R. v B.C. Professional Pharmacists’ Society and Pharmaceutical Association of British Columbia [1971] 1 WWR 705 (B.C.S.C.); R. v. Nova Scotia Pharmaceutical Society (1992) 93 DLR (4th) 36 (S.C.C.).
[91] Ferguson, above note 48 at p. 156.
[92] Quoted from Quaid, above note 6, at p. 85.
[93] B. Fisse, “Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault, and Sanctions”, 56 Southern California Law Rev. (1983), pp. 1141-1246 at p. 1177.
[94] Wells, above note 11 at p. 90.
[95] B. Fisse, “Rethinking Criminal Responsibility in a Corporate Society: An Accountability Model” in Business Regulation and Australia’s Future.
[96] Quaid, above, note 6, at p. 83.
[97] Quaid contended that: “…intentionality does not contain any moral element itself. It is simply a means of setting out a criterion of responsibility which is independent of human characteristics:” above, note 6, p.75.
[98] French, above, note 8, at p. 38.
[99] Criminal Responsibility for Group Action (Working Paper No. 16) (Ottawa: Law Reform Commission of Canada, 1976) cited in Quaid, above note 6 at p. 86.
[100] This is more so now that the Economic and Financial Crimes Commission (Establishment) Act No 1, 2004, is in place to fight financial and economic crimes, most of which are perpetrated using companies and transnationals. See further L. H. Ali, Corporate Criminal Liability in Nigeria (Lagos: Malthouse Press Ltd, 2008) pp. 314-316.