Section 1 of the Criminal Code defines Criminal responsibility as liability to punishment as to an offence. While criminally responsible means to be liable to punishment for an offence. The concept of criminal responsibility is to determine whether a person should be held responsible or liable for the commission of an offence. Essentially, it’s not a question of whether an offence has been committed, but whether a subjective fault is found in the accused. This concept finds its expression in the legal maxim actus non facit reum nisi mens sit rea.

Legal Elements to form Criminal Responsibility

There are two elements that needs to be proved before an accused can be convicted of a crime;

1. Actus Reus: This refers to the physical act of bringing about the offence. This could take the form of taking or moving a property which belongs to someone else under the offence of stealing provided for by Section 383 of the Criminal Code, or stabbing someone to death under the offence of murder or manslaughter provided for in Section 315 of the Criminal Code. However, an omission to do an act required by law will also constitute an actus reus.

• Mens Rea: This is referred to as the mental element of a crime and is usually provided for by the defining section of each offence. The required mens rea under criminal law include intent, knowledge, recklessness, and negligence.

In essence, an accused can only be guilty of an act or omission provided it is accompanied or done with the required or defined mental element.

Can a Corporate Entity be Guilty of an Offence?

A corporate entity is a legal person and not a natural person. According to Sussan Wolf, a corporate person has no moral responsibility, that is, it has no mind of its own. Therefore, the mental element required for an offence cannot be attributed to a corporate entity.

Also, it is an established principle of law that a corporate or legal person is different and distinct from the natural persons who established or runs the corporation. Therefore, since a corporate entity has no mind of its own and it is separate from its administrators who possess a mind of their own, it raises a question of whether or not a corporate entity can be criminally responsible?

Position Under the Criminal Code

The criminal code is the primary criminal offence statutes in Southern Nigeria, and it is silent on the concept of corporate criminal liability, thus, casting a doubt as to the liability of a corporate body in criminal charges.

It has however been argued that since all offences start with the phrase “any person..” and the word “person” has been statutorily and judicially defined to include corporate persons or bodies,^[1] a corporate body therefore can be held criminally liable.

Judicial Approach

The English court established the Alta Ego Theory, also referred to as the Identification theory whereby the human agents ensuring the operations of the corporation are recognized as the whole body of the corporation. The body is further divided into

(1) The hands; these are the operational workers, and

(2) The Minds and Brains; These are the administrative workers.

According to Lord Dilhorne, the “Brains and Minds” are those who are in actual control of the corporation, free from the control of others. As held in Tesco Supermarket v Nattrass,^[2]this category of people include the board of directors, the managing directors and all other superior officers of the corporation.

The Identification theory attributes the mental element of the “brains and mind” of the corporation as that of the corporation itself.

This is a common law theory whereby the master is held accountable for the acts or omissions of his servant. The rank or role of the servant is irrelevant, so long it is established that, (1) There is a Master/Servant relationship, (2) The servant has committed a crime within his course of employment..

While the theory of vicarious liability remains a big concept under Tort Law in Nigeria, the Nigerian courts have leaned more towards the alta ego theory in criminal matters, and it is already settled that a corporate entity can be held criminally responsible. For example, in FRN v Sir Kingsley Ikpe,^[3] a corporation alongside its managing directors were convicted of the offence of stealing, uttering and forgery.^[4]

Position Under the Criminal Law of Lagos State

Unlike the Criminal Code, the Criminal Law of Lagos State expressly provides for corporate criminal liability in

Section 495 – Criminal Liability of Corporate Bodies

“(1) Where an offence is committed by a corporate body, every person who, at the time of the commission of the offence, was a director, manager, secretary or other officer of the corporate body, or was purporting to act in any such capacity, shall be deemed to have committed that offence, unless he proves that. The approach also leans towards the Alta Ego theory, but expressly provides in Section 20(3) that consideration must be given to such persons as to whether they possess a real or apparent authority to bind the corporation.

Section 20(4) however further provides that the criminal responsibility of a person who does not possess neither a real or apparent authority will be attributed to the corporation where the corporation does nothing to prevent the commission of the offence.

The Position Under the Company and Allied Matters Act (CAMA) 2020

The approach under the Company and Allied Acts also captures the Alta Ego or Identification Principles.

Section 89 of CAMA imposes criminal liability on corporations for the acts or omissions of its members in general meetings, board of Directors, and Managing Directors. Section 90 now further provides that where any of the persons mentioned in Section 89 authorises any of its corporation officer or agent to do or omit to do an act which is a crime, then the act or omission of the officer shall be sufficient to impose criminal liability on the corporation.

While the concept of corporate criminal liability was faced with difficulty, there has however been a significant evolution through the adoption of the Alta Ego/Identification theory by the Nigerian Court in determining the criminal responsibilities of a corporation. Subsequent statutory reforms like the Lagos State Criminal Code and the Companies and Allied Matters Act have solidified the concept within the Nigerian Criminal Justice System by explicitly addressing the issues. It is therefore established that a corporate body can be criminally responsible.

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^[1] Section 18 of the Interpretation Laws, Aderemi v Lan and Baker Nigeria Ltd [2000] 7 NWLR (part 663) 51

^[2] [1972] AC 153.

^[3] (2005) 2 Q.C.C.R. 162

^[4] See also FRN v Olowe [2006] 7 Q.CC.R. 185, R v Service Press Ltd [1952] 20 NLR 96.

AUTHOR; JUSTICE OJIENOH