TABLE OF CONTENTS

Title page i

Certification ii

Dedication iii

Acknowledgements iv

Table of Contents vii

Table of Cases xiii

Table of Statutes xxii

Table of Abbreviations xxxi

Abstract xxxiv

CHAPTER ONE: GENERAL INTRODUCTION

1.1 Background of the Study 1

1.2 Statement of the Problem 4

1.3 Literature Review 5

1.4 Research Questions 22

1.5 Objectives of the Study 23

1.6 Research Methodology 24

1.7 Significance of the Study 25

1.8 Scope of Study 26

1.9 Definition of terms 27

1.9.1 Corporation 27

1.9.2 Corporate Crime 28

1.9.3 Criminal Liability 29

1.9.4 Criminal Responsibility 29

1.9.5 Responsibility and Liability 29

1.9.6 Corporate Manslaughter 30

1.9.7 Doctrine 30

1.9.8 Principle 30

1.9.9 Theory 30

1.10 Conclusion 31

CHAPTER TWO: HISTORICAL BACKGROUND OF

ATTRIBUTION OF CRIMINAL LIABILITY

TO CORPORATIONS

2.1 Introduction 33

2.2 Ancient Law 34

2.3 Roman Law 35

2.4 Medieval Law 37

2.5 The Situation After the World War II Nuremberg Court 39

2.6 Evolution of Corporate Crime in England 40

2.7 Evolution in the United States 44

2.8 Evolution in Canada 46

2.9 Evolution in Netherlands 48

2.10 Evolution in France 50

2.11 Evolution in Germany 54

2.12 Evolution in Australia 56

2.13 Evolution of Corporate Crime: The Nigerian Experience 58

2.14 Conclusion 64

CHAPTER THREE: THE NATURE AND SCOPE OF CORPORATE

CRIMINAL LIABILITY

3.1 Introduction 65

3.2 The Concept of Corporation 65

3.3 The Doctrine of Corporate Personality 70

Theories of Corporation and Legal Implication 78

3.4.1 The Fiction Theory 78

3.4.2 The Reality Theory 79

3.4.3 The Concession Theory 80

3.4.4 ‘Symbolist’ or ‘Bracket’ Theory 81

3.5 The Nature and Definition of Crime 84

3.6 Definition of Corporate Crime 90

3.7 Basic Elements of Crime 93

3.7.1 Corporate Actus reus 94

3.7.2 Conduct 95

3.7.3 Consequence 96

3.7.4 Omissions 96

3.8 Corporate mens rea 98

3.8.1 Intention 101

3.8.2 Recklessness 102

3.8.3 Negligence 103

3.9 Classification of Corporate Crimes 106

3.10 Seriousness of Corporate Crime 109

3.11 Transnational Corporate Crime 112

3.12 Cost of Corporate Crime 116

3.13 Conclusion 117

CHAPTER FOUR: THE RATIONALE OF CORPORATE CRIMINAL LIABILITY

4.1 Introduction 119

4.2 The Rationale for Corporate Criminal Liability 119

4.3 Crime as a Public Wrong 128

4.4 Crime as a Moral Wrong 130

4.5 The Aims of the Criminal Punishment 132

4.5.1 Condemnation and Denunciations 132

4.5.2 Rehabilitation 133

4.5.3 Prevention 134

4.5.4 Deterrence 134

4.5.5 Retribution 137

4.6 Conclusion 139

CHAPTER FIVE: CORPORATE ORGANS AND CONTROL

5.1 Introduction 140

5.3 Management Organs of the Company 141

5.2 Exercise of Company’s Powers 155

5.4 Conclusion 168

CHAPTER SIX: BASIC THEORIES OF CORPORATE

CRIMINAL LIABILITY

6.1 Introduction 170

6.2 The Doctrine of Vicarious Liability 172

Nigerian Position 180

6.4 The Usefulness of the Doctrine of Vicarious Liability 187

6.5 The Identification Doctrine 190

6.6 The Nigerian Version of the Identification Doctrine 207

6.7 Criticism of the Identification Doctrine 212

6.8 Aggregation or Collective Knowledge Model 213

6.9 Criticism of the Aggregation Doctrine 218

6.10 Corporate Fault model 221

6.11 Strict Liability 226

6.12 Power and Acceptance 232

6.13 Reactive Liability Theory 233

6.14 Conclusion 236

CHAPTER SEVEN: STATUTORY APPROACH TO CORPORATE CRIMINAL LIABILITY IN NIGERIA AND OTHER JURISDICTIONS

7.1 Introduction 238

7.2 Statutory Approach to Corporate Criminal Liability in Nigeria 238

7.3 The Effective of the Existing Legal Framework on Corporate Criminal

Liability in Nigeria 251

7.4 Statutory Approach to Corporate Criminal Liability in Foreign

Jurisdictions 257

7.4.1 The United Kingdom Position 257

7.4.2 The United States Position 261

7.4.2.1 “Corporate Culture” Factors in Sentencing 267

7.4.3 The Canadian Position 271

7.4.4 The Australian Position 276

7.4.5 The Netherlands Position 284

7.4.6 The France Position 290

7.4.7 The Germany Position 292

7.5 Conclusion 295

CHAPTER EIGHT: THE PROBLEMS OF CORPORATE ARRAIGNMENT, TRIALS PROCEDURE AND ENFORCEMENT OF CRIMINAL SANCTIONS ON CORPORATIONS AND THE LIABILITY OF CORPORATE OFFICERS AND OTHER AGENTS

8.1 Introduction 296

8.2 Service of the Court Processes on a Corporation 297

8.3 Method of Effecting Service on a Corporation in Criminal Matters 298

8.4 Committal of Corporation for Trial 300

8.5 Appearance and Plea by a Corporation 301

8.6 Committal of a Corporation 304

8.7 Enforcements of Criminal Sanctions on a Corporation in Nigeria 305

8.8 The Liability of Directors, Managers Secretaries and Similar

Officers of the Corporation 309

8.9 The Liability of Subsidiaries and Divisions 312

8.10 The Liability of Independent Contractors 316

8.11 Conclusion 317

CHAPTER NINE: CORPORATE LIABILITY FOR MURDER AND MANSLAUGHTER

9.1 Introduction 318

9.2 Murder 319

9.3 Manslaughter 325

9.4 Gross Negligence Manslaughter 327

9.5 Unlawful and Dangerous Act Manslaughter 330

9.6 Causing Death by Dangerous Driving 331

9.7 The Definition of Corporate Manslaughter 333

9.8 Corporate Manslaughter in England 337

9.9 Corporate Manslaughter in the United States 343

9.10 Corporate Manslaughter in Australia 347

9 .11 Corporate Manslaughter in France 349

9.12 Corporate Manslaughter in Netherlands 350

9.13 Corporate Manslaughter in Canada 353

9.14 Corporate Manslaughter in Germany 353

8.15 Corporate Manslaughter in Nigeria 362

9.12 Corporate Manslaughter Bill (Nigerian) – How effective will this be? 372

9.12 Conclusion 377

CHAPTER TEN: CRIMINAL SANCTIONS AND THEIR ROLE IN

CONTROLLING CORPORATE CRIME

10.1 Introduction 379

10.2 Fines as a Criminal Sanctions 379

10.3 Alternative Sanctions to Fine 388

10.3.1 Adverse Publicity 388

10.3.2 Corporate Probation and Rehabilitation 393

10.3.3 Community Service Order 396

10.3.4 Equity Fines 399

10.3.5 Death Penalty 401

10.3.6 Adjournment with Conditions 404

10.3.7 Temporary Closure 404

10.3.8 Freedom Deprivation 405

10.4 Conclusion 406

CHAPTER ELEVEN: RECOMMENDATIONS AND CONCLUSION

11.1 Introduction 409

11.2 Summary of Findings 411

11.3 Recommendations 420

11.4 Conclusion 439

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TABLE OF STATUTES

Nigerian Statutes

Companies and Allied Matters Act, Cap C20 Laws of

the Federation of Nigeria 2004. 19,64,67,143,166,174,241,243,420

18 313
33(12) 240
37 67
38 68
38(1) 128,253
39(1) 144
49 (1) 242,253
63 141,162,167
63(1) 157
63(4) 156,169,253,419
63(5) 169
63(5)(a) 162
63(5)(b) 160,162,169
63(5)(c) 160,162
63(6) 159
64 141
64(b) 144
65 19,141,146,168,210,231,417,419
66 141,180,211,253
66(1) 154
66 (2) 19,182,242
66(3) 154,181
66(a) 242
66(b) 242
70 253
79(1) and (2) 159
166 160
245 244
211(2) 161
262(3) 160
262(6) 160
284(1) 159
235 161
301(1) (2) 163
408(e) 428
650 159

Constitution of the Federation Republic of Nigeria,

Cap. C23. LFN 2004 88,252

6(6)(c) 306
33 322
33(12) 240
36(8) 383, 386

36(12) 88,252
315(1)(a) 427

Criminal Code Act, Cap C38 LFN 2004 30,210,244,252,253,320,325,264

1 88
2 48
3 244
17(h) 395
129 381
160 321
169 381
306 321
308(2) 186
316 320
468 301 S. 471 301
473 301
479 301
491 381
500 381
507(1) 381

Criminal Procedure Act, Cap. 80 L.F.N 1990, Cap C. 41 L.F.N 2004 298,302,304

1 29
467(1) 300
467(2) 300
469 304
474 302
475 305

Companies Income Tax Act. Cap. C21, LFN 2004 21,247,392

Consumer Protection Council Act, Cap C25 vol. 4 LFN 2004 248,392

9(2) 249

Corrupt Practices and Other Related Offences Act,

Cap. C31, LFN 2004, (as amended) 247, 392

Corporate Manslaughter Draft Bill (Nigerian) 373

1 373
1(2) 373
1(3) 374
8(1) 376
9(1) 376

Counterfeit and Fake Drugs (Miscellaneous Provisions) Act

Cap. C34 L.F.N, 2004 229

3(2) 229

Customs and Excise Management Act, Cap. 84, LFN, 1990 now

C44, 2004 (as amended) 229

197(a) 229

Economic and Financial Crimes Commission (Establishment)

Act Cap. E 1, LFN, 2004 247,392

Environmental Protection and Waste Management

Agency Law of Akwa Ibom State 248

Evidence Act, Cap. E14 Vol. 6 LFN 2004 301

467 (3) 301

Failed Banks (Recovery of Debt) and Financial

Malpractice in Banks Act Cap.F2, LFN, 2004-121 230,247,248,249,310, 392

22(1) 428
22(2) 428

Factories Act Cap F.1 LFN 2004 422

Federal Environmental Protection Agency Act, Cap.

F10, LFN 2004 21,247, 254,382, 392, 428

20(4) 229

Federal Highways Act Cap 135 LFN, 1990, now F12 LFN, 2004. 331

5 331

Food and Drugs Act, 1990, Cap. F.32, LFN, 2004 227,247,311,392

17 310

Financial Malpractices in Banks Act, No. 18 (1994)

as amended in 1999; Cap B.3 LFN, 2004. 428

Harmful Waste (Special Criminal Provisions) Act Cap. 165, LFN,

1990, Cap. H. I. LFN, 2004 21,247,382,392

Investments and Securities Act, (ISA) Cap, I24 LFN, 2004 247, 392

Interpretation Act, Cap I23 LFN, 2004 239

11 324

Money Laundering (Prohibition) Act, Cap.M18, LFN, 2004 21,247, 392

18(2) 428

National Drug Law Enforcement Agency Act, Cap N30, LFN, 2004 21,229, 247,392

16(4) 229

Workmen’s Compensation Act, Cap W.6 LFN, 2004 254

29 422
32 422

Tobacoco Smoking (Control) Decree Act, now Cap. T6 L.F.N, 2004 230

Trade Malpractices (miscellaneous offences) Act, Cap T12, LFN, 2004 21,247,392

Penal Code Act, Cap P. 14, LFN 2004 88,252

5(1) 88
27 230
68(3) 395
185 381
220 322
403 86
405 (1) (c) 97
429 381
461 381
465 381
466 381
468 381

Penal Code Law Cap. 89, Law of Northern Nigeria, 1963 60,240

Public Officers Protection Act, Cap. P41, LFN, 2004 62

Standards Organization of Nigeria Act, Cap. S9 LFN, 2004 382, 392

15 382
16(4) & (5) 382
19(1) 383

FOREIGN STATUTES

UNITED STATES

American Model Penal Code, 1962 176,202,263

1 263
2.07(1)(c) 176
2.07(4) 141,200,201
2.07 (4)(b) 176
2.07(5) 265
655 343
666(e) 343

American National Commission on Reform of Fed, Crim.Law (final Report) 1971 245

402(1) (a). 245
405 245

American Law Institute, Model Penal Code, Complete Statutory Text 34, 1985. 266

Currency Transaction Reporting Act, 1994 213

Occupational Safety and Health Act 1970 243

666(e) 243

United States Sentencing Guidelines Manual, 2006 268,394

8C2.5(b)(1) 268
8C2.5 (f)(2) 269
S. 5(b)(3)(a) 269
8D 1.2 269
8 D1.1 (a)(6) 269
8D14(c) 270

Sarbanes-Oxley Act of 2002 270

UNITED KINGDOM

Corporate Manslaughter and Homicide Act, 2007 223,341

1 223
1(1), (2), (3) 259
1(4)(b) 224,260
1(4)(c)(i) 223,260
1(4)(c)(ii) 223,260
2 261
2 (1) (a-d). 260
(4)(c) (i)(ii). 260
20 259,343

Company Procedure Act, 1995 302

143(4) 302
474 302

Criminal Justice Act 1925 296

33(3) 296

Criminal Justice Act 1990 224,324

2 224

Merchant Shipping Act, 1894 220

Road Traffic Act 1961 333

26 333

Road Traffic Act, 1988 97

4(2) 97

Road Traffic Act 1995 333

2 333

Sexual Offences Act, 1967 86

AUSTRALIA

Criminal Code Act, 1900 281

7(a) 281
9(a) 281
49(c) 281

Australian Corporate Criminal Act, 1914 173

4(b) 173,179,278

Australian Criminal Act, 1995 57,272,277

12.3 57,277
12.3(4)(b) 279
12.6 57,277

Criminal Code Bill 1994, Explanatory Memorandum, 45 280

Criminal Code Act, 2002 281

20 281
21 281,282
51 281
52 281,282

Crimes Act 1900 (ACT) 260,281

9(a) 281
49(a) 260,282
49(c) 281

Australian Criminal Code Act 1997 173,179,221

1 223 S. 1(4)(c) (i). 223
1(4) (c) (ii). 224
12(3)(1) 221
12 (2) (3) (a) and (b) 221
12(3)(2)(c) 222
12(3)(2)(d) 222
12(3)(6) 222
12(3)(4)(a) 222
12(3) (4) (b). 222

Industrial Manslaughter Amendment Act, 2003 283

49(b) 283
49(c) 283
49(d) 281

Sentencing Act 1997 396

4 396
7 396

Trade Practices Act 1974 57,394

84 57
86C (2) (a) 394
86C(2)(b) 395,397

Workplace Safety and Health Act 2006 387

CANADA

Canadian Bill C-45, 2003 272,353

2 353
22(1) 274
22(2) 274

Criminal Code, R.S.C. 1985 205

22.1(a)(i) 274,275
22.1(a)(ii) 274,275

S 22.1(b) 275

22(2) 204
22.2 (b) 275
239(1)(d) 204

NETHERLANDS

Dutch Penal Code (DPC), 1976 284

Article 51 284

(2) 286
3.4.1 285

Economic Offences Act, 1951 49

15 49

S 2 48

FRANCE

French Grande Ordinnance Criminelle, 1670. 51

French Penal Code 1810 52

Nouveau Code Penal 1994 53

Penal Code, 1992 53,190,203

121(2) 53,190,290
221(6) 205

Article 121(2) 290,291

GERMANY

Germany Regulatory Offences Act 354,356,359

30 292,359
30(1) 206
30(4) 358

TABLE OF ABBREVIATIONS

A Appeal

AC Appeal Cases

AGM Annual General Meeting

ALR Australian Law Reports

ALR Comm African Law Report (Commercial Law Series)

ALL ER ALL England Reports

ALL NLR ALL Nigerian Law Reports

App Cas Appeal Cases

Beav Beavan’s English Rolls Court Reports

CA Court of Appeal

CAP Chapter

CAMA Companies and Allied Matters Act

C MA Corporate Manslaughter Acts

CMCHA Corporate Manslaughter Act and Corporate Homicide Act

CC Criminal Code

CCA Criminal Code Act

CCHJ Certified Copy of High Court Judgment

CLR Canterbury Law Review

CPA Criminal Procedure Act

CPC Criminal Procedure Code

Cth Commonwealth

CLR Commonwealth Law Reports (Australia)

Ch App Chancery Appeal Cases

Ch D Law Reports, Chancery Division

Cox CC Cox’s Criminal Cases

Crim LR Criminal Law Review

DCC Dutch Civil Code

DPC Dutch Penal Code

DPP Director of Public Prosecutions

DLR Dominion Law Reports (Canada)

De G & J De Gex & Jones

ECJ European Court of Justice

ECJR European Court of Justice Reporter

ECR European Court Reports

ED Edited

EDN Edition

EOA Economic Offences Act

Ex. DIV Law Reports, Exchanger Division

ECSLR East Central State Law Reports

ENLR Eastern Religion of Nigeria Reports

F 2^nd Federal Reporter, Second Series (U.S.A.)

FSC Selected Judgments of the Federal Supreme Court

FSC Federal Supreme Court Reports

FWLR Federation Weekly Law Report

HL House of Lords

HLC House of Lords Cases

H & M Hemming & Miller

Hare Hare’s English Vice Chancellor’s Reports

KB Kings Bench

KBD Kings Bench Division Reports

K & J Kay & Johnson’s English Vice Chancellor’s Reports.

LFN Laws of the Federation of Nigeria

KLR Kings Law Reports

LRCC Law Reports Crown Cases Reserved

LRCN Law Reports Courts of Nigeria

LJ Ch Law Journal, Chancery

LJPC Law Journal, Privy Council

L L R High Court of Lagos Law Reports

LR Eq Law Reports, English and Irish Appeal

LRC Law Report Commonwealth

L T Law Times Reports

My & Cr Mylne & Craig’s English Chancery Reports

MP Member of Parliament

MPC Model Penal Code

NBA Nigeria Bar Association

NBJ Nigeria Bar Journal

NCLR Nigerian Commercial Law Reports

NJI National Judicial Institute

NLJ Nigeria Law Journal

NLR Nigeria Law Reports

NLRC Nigerian Law Reform Commission

NNLR Northern Region Law Reports

NMLR Nigerian Monthly Law Reports

N Sup Ct New York Supreme Court

NSCC Nigerian Supreme Court

NSWCA New South Wales Court of Appeal

NSWLR New South Wales Law Reports

NWLR Nigerian Weekly Law Reports

NY Ch New York Chancery

NLR New Zealand Law Reports

Op cit Opera Citato, Meaning, in the work mentioned.

P C Privy Council

Prec Ch Precedents in Chancery

Pt. pts Part/Parts

PC Penal Code

PCL Penal Code Law

B. Queen’s Bench

QBD Queen’s Bench Division Reports

Qd R Queensland Reports

Section

SS Sections

SCC Supreme Court Reports (Canada)

RCSC Rapports of Supreme Court of Canada

S C Supreme Court

SCR Supreme Court Report (Canada, Australia, Botswana)

SCTLR Supreme Court Times Law Report

Sell. Cas. Ch. Selected Cases in Chancery Reports

J. Solicitor’s Journal, London

Sim & St Simons and Stuart’s English Vice Chancery Reports

Tex. App. Texas Appeal Reports

L. R. The Times Law Report

UILR University of lfe Law Reports

UWAL Rev University of western Australian Law Review

V & B Vesey and Reamas’ English Chancery Reports

R. Victorian Reports

US United States Reports/US Supreme Court Reports

VOL Volume

W.A.L.R.ev. Western Australian Law Review

WAR Western Australian Law Reports

WLR Weekly Law Report

WNLR Western Nigerian Law Reports

WRNLR Western Region of Nigeria Law Reports

WN Weekly Notes

WRN Weekly Report of Nigeria

ABSTRACT

The evolution of the concept of corporate criminal liability of corporations is characterized by relentless struggles of the judiciary to overcome the problem of assigning criminal blame to fictional entities. Initially, a corporation was considered to be an entity devoid of a person in the strict sense; therefore, criminal guilt was considered to be quite difficult to establish in cases of aberrations of criminal nature by it. The principle of vicarious liability instead of criminal liability was invariably sought in such cases. With the emergence of welfare states with considerable emphasis on accountability and in view of some serious violations by corporations resulting in the loss of lives, public money, and damage to health and property, the issue of fixing a strict criminal responsibility was brought to focus. The doctrine of corporate criminal liability is therefore a developing phenomenon. Presently, the courts and the legislatures in Nigeria and other jurisdictions have devised some theories and evolved legal basis in a bid to place liability for crimes of intent on corporations. In this work, attempt is made to show that corporations can have the state of mind together with the physical elements necessary to constitute an offence. The work also examines the legal framework for corporate crime in Nigeria and other common and civil law countries. The work further examines criminal sanctions and their role in controlling corporate crime, the problems of corporate crime, and the incident of corporate killing in work places. The study also discusses the alternative models of corporate liability which are not derivative but which locate the blameworthiness within the corporation itself or at most take cognizance of the compartmentalization of knowledge within a corporation for corporate crime. In this work expository, analytical and comparative jurisprudence has been carried out with the help of relevant statutes and case law. Part of the findings of this work is that criminal law jurisprudence is settled on the point that corporations can be held liable for offences which require evidence and proof of mens rea. It has also been found that the ascription of criminal liability to companies meets several conceptual problems. The research further shows that neither the Nigerian Criminal nor the Penal Code expressly provides for the criminal liability of corporate bodies. Nigerian laws on corporate criminal liability are inadequate; they lack clear basis for corporate criminal responsibility especially as it relates to corporate manslaughter. The thesis also shows that lack of successful prosecution of companies in Nigeria for corporate manslaughter despite the wave of work place killings is largely due to defective and inadequate legal framework. The study has further found that the assumption that corporate liability must be derivative has come under increasing attack from legal commentators, academic writers, jurists and law reform bodies, who all attempt to locate criminal liability on an organizational basis. The work has attempted to outline a number of possible alternative models of corporate liability that have been put forward for Nigeria to borrow ideas from. The result of the work also shows that the existing modes of sanctioning in Nigeria is inadequate; imposing paltry fines of N1000 or N500 Naira for such a high environmental crime as oil spillage is not enough to deter corporations. To also prosecute individual officers of a company is equally unfair and ineffective. The research suggests that there is, therefore, no alternative to an adequate reform, appraisal and revamp of corporate criminal liability law in Nigeria given the recent law reforms that have taken place in other countries like the United Kingdom, United States, Australia, Canada and Netherlands, as indicated in this work. In order to handle these issues successfully, the researcher chose a framework comprising eleven chapters with well articulated headings and sub-headings (as can be seen under the scope of study on pages 26-27 of this discourse) which form a road map which underlines the theoretical basis of this work, while the bibliography concludes the thesis.

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

It is important to study corporate crime because of the economic damages that organizations can cause. In the contemporary world, the impact of the activities of corporations is tremendous in the society. In their day-to-day activities, not only do organizations affect the lives of people positively, but they also bring many devastating impact upon the people. Activities of corporations may cause serious damage to health or the environment; and may sometimes result in death. Fraudulent actions by some companies may lead to huge financial losses for individuals, groups, or other companies. In the 1990s, both the United States of America and Europe recorded an alarming number of environmental, antitrust, fraud, food and drug abuses as well as false statements, workers’ death, bribery, obstruction of justice, and financial crimes involving corporations. The most recent and prominent case in the United States has been the Enron scandal in which one of the largest accounting firms in the world, Arthur Andersen LLP, was charged and convicted for obstruction of justice and for destroying Enron-related documents.[1] Other corporations, among which are Olympic Pipeline, Exxon-Mobil, Pfizer and Bayer pharmaceutical companies, breached the environmental or health and safety laws.[2] MC Wane Incorporated, one of the world’s largest manufacturers of cast iron pipes, has an extensive record of violations which have caused the death of workers in the work place.[3]

The capsized Zeebrugge ferry, the King’s Cross fire, the Clapham and Paddington Rail crashes, and the Hillsborough football tragedy all represent recent disasters in the United Kingdom.

In Nigeria, we have had incessant reports of plane crashes, collapsed buildings, petroleum oil pipe and gas explosions, sea disasters and breaches of environmental or health and safety laws by corporations, killing innocent Nigerians in their thousands. There is also an account of the loss of lives involving over 120 employees of a rubber-related product manufacturing factory aggravated mainly by the company’s policy of locking the workers inside the factory at the commencement of work daily.[4] The recent events in the Nigerian Banking sector are reminiscent of what was witnessed during the era of the Failed Banks Tribunals.[5] Directors and bank officers were prosecuted and punished despite the fact that they acted on behalf of the banks. We can not also forget in a hurry the dumping of harmful toxic waste materials in Koko, Delta State of Nigeria in June, 1988 by a foreign company.

Generally, corporations are now involved in relatively new and usually white collar crimes such as: tax evasion, fraudulent trading or insider dealing, fraud, unfair competition, breach of fiduciary duty, banking and insurance frauds, and false invoicing (including over-invoicing). Companies may also commit crimes ranging from corporate fraud, commercial pollution of air and water, environmental and health and safety violations, illegal currency manipulations, capital transfers, illegal mining, maritime fraud scheme, currency counterfeiting, murder and corporate manslaughter, and so on.

Corporate criminal liability, more than ever before, is becoming increasingly prevalent. These corporate crimes result in great loss of lives and properties. The consequences which most directly affect our society are the enormous loss of money, jobs and lives. At the same time, the long-term effect of these crimes, such as the damaging effects on the environment and health, which may not be apparent now, should not be underestimated.

The reaction to this corporate criminal phenomenon has been the creation of judicial and legal regimes that could deter and punish corporate wrongdoing. Corporate misconduct has been addressed by civil, administrative, and criminal laws. At the present, most countries agree that corporations can be sanctioned under civil and administrative laws.

However, criminal liability of corporations, which is the focus of this study, has been very controversial. While several jurisdictions have accepted and applied a concept of corporate criminal liability under various models, other legal systems have not been able or willing to incorporate these theories into their legal systems. Critics have voiced strong arguments against its efficiency and consistency with the principle of traditional criminal law. At the same time, a large pool of partisans has vigorously defended corporate criminal liability.

In this study, attempt is made at justifying the purposes of corporate criminal liability, the reasons that some jurisdictions adopt this concept, but others still refuse to accept it, the models of corporate criminal liability developed so far, the reason that corporate criminal liability developed differently in different countries and the lessons that may be learnt from these developments. Now, it is well settled that a corporation can be held criminally liable for committing offences that require mens rea. Generally, corporations may be held responsible for the illegal acts of its employees if such acts are related to and committed within the course of employment, and in furtherance of the business of the corporation.

This work is an attempt at looking into both the Common Law and the Civil Law experiences and to offer plausible bases for effective enforcement of criminal liability on corporations in Nigeria.

1.2 Statement of the Problem

The underlying rationale and relevance of this study aims at analyzing the emerging debates of the 21^st century in the arena of corporate criminal liability. The idea is to focus on situations and circumstances that are essential to proving the mental element of criminal liability of corporations. There are two major problems of accountability confronting criminal law in its attempt to address the commission of wrongful acts by large scale corporations and companies registered by law.[6] One problem that judges and jurists have had to contend with over the years is that criminal law was concerned with crimes by individual human beings. Crimes by corporations were not considered possible since a corporation was considered as not having a physical existence. The reasons for this attitude were that, although a corporation is a “legal person”, it is in reality an artificial creation that can only act through human agents – hence tracing mens rea or a guilty state of mind in an abstraction like the corporation posed a formidable challenge.

Punishment provided another obstacle to the liability of a corporation. At this time, felonies were punishable by death, and most other crimes by imprisonment. Since a corporation has no body, it could not be hanged or imprisoned and so, there was no point in taking proceedings against it.

This work seeks to show that the individualistic maxim that corporations do not commit crime is not an absolute principle but simply a social creation. The law as a social engineer has been constantly manipulated to meet the needs of all ages and the principles of criminal liability are no exception to that. The history of criminal liability shows that collective punishments and punishment of non-human entities were culturally accepted, and it was only after the predominance of the ideals of the enlightenment that the individual became the only agent able to be held criminally liable. The historical analysis reinforces the notion that the legal system can and should create a legal institution to serve social needs. The acceptance of corporate criminal liability is one of these needs and the present research reveals that although there are problems of attributing criminal responsibility to corporations generally, these problems are far from being unique, and it would be a serious mistake to view corporate criminal liability in isolation divorced from other legal concepts. Indeed, a comparative view of corporate criminal liability suggests that if there is to be a reform, the agenda should be broader. Reformers should consider whether to make it easier, rather than harder, to prosecute corporations, at least in certain contexts.

This study intends to highlight how the adoption of an individualistic model of liability is problematic in relation to corporate criminal liability.

Literature Review

Criminal liability of corporations is not a universal feature of modern legal systems. Related literature on corporate crime, in general and corporate manslaughter in particular, is most challenging, thoughtful, and insightful and at the centre of scholarly discussions in the legal system of countries including Nigeria. This ranges from writings by scholars and eminent jurists to the case laws. Despite the fact that much has been written on this subject, the debate on appropriateness of assigning criminal responsibility to corporations is far from over. Contributing to knowledge in the area of scholarly writing, Laufer[7] posits that the control of corporate bodies has been unsuccessful historically, and that reforms targeted at such control will continue to fail in yielding the required result if there is no agreement between academic and judicial authorities on the application and limits of corporate criminal law. However, according to Sheehy,[8] the position of Laufer is lacking in that it focuses on the prosecution of corporations, which may be considered the reasonable and expected result of lack of substantive corporate criminal law, and which fails to move the discussion of corporate criminal law forward in a meaningful way.

On the issue of the treatment of corporations as natural persons under criminal law, Aggarwal[9] maintained that in an attempt to hold corporations criminally liable for true crimes and regulatory offences, two models have been identified and used, to wit: the vicarious liability theory and the identification doctrine. According to him, while the former holds the corporation criminally liable for the act of her servants in the course of the corporation’s business without proof of any personal fault on the part of the corporation, the later recognizes the acts and state of mind of certain senior officers in a corporation as the directing mind and acts of the corporation. However comparative and highly analytically sound the position of Aggarwal is, it has still failed to show how a company could be held criminally liable where the only punishment imposed by the statute prohibiting the criminal act, is custodial sentence (imprisonment).

The learned author also failed to state whether those two approaches will be sufficient to deal with the conviction and sentencing of corporations. The author further failed to state whether vicarious liability and identification doctrine should be imposed on corporations for crimes of unlawful act of manslaughter or gross negligence manslaughter which results from a breach of a duty of care. Thus, the author has not covered the subject matter discussed in this work.

Podgor[10] has shown that several scholars have argued that corporate criminal liability is inefficient and should be scrapped in favour of civil law liability for corporate entity or at least be strictly limited. However, Beale[11] maintains that as much as corporations are very real and enormously powerful actors whose acts often cause very significant harm both to individuals and society as a whole, the imposition of criminal liability on them makes sense as they are not fundamentally fictional entities. According to Beale, if the priority in the criminal justice system is the reformation of corporate criminal law, the concern should be not only on restrictions of corporate criminal liability but also of the enforceability of existing offences more vigorously. Beale, in comparing the US criminal justice system with that of the UK and Canada, maintained that by the enactment of the Corporate Manslaughter and Homicide Act, 2007, the UK and Canada have adopted legislation intended to provide easy prosecution for corporate homicide. This Act, according to Beale, holds organizations guilty of an offence if it is established that the way in which its activities are managed or organized causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organization to the deceased. In the aspect of corporate manslaughter, Beale, while citing the prosecution of Continental Airlines for manslaughter by French government, stated that corporate criminal liability is increasingly regarded as a necessary part of the law of developed Western nations. However, the learned author fails to state whether under the French legal system a company can successfully be prosecuted and convicted for offence of unlawful act manslaughter. If that is true, which model and or approach should be adopted in the case of Continental Airlines for manslaughter in France and what kind of punishment should be imposed. These and others are some of the questions which the learned author has not averted his mind to address.

In their view, Streteam and Chirita[12] say a corporation has the mental capacity to commit offence requiring mental fault, because if the corporations’ capacity to act and decide has been recognized in contract, administrative, and constitutional laws and if a corporation has the capacity to think and decide when it is a party to a contract (and thus being the subject of contractual rights and obligations), it cannot therefore be sustained that corporate will power does not exist when the effects created are illegal (that is to say criminal offences). They conclude, and, rightly too, that the blameworthiness of corporations exists and it is sufficient for the culpableness required by the criminal law. This author respectfully subscribes to this view and adds that a corporation has the independent existence which does not always identify with the collectivity of the members of the corporation.

Chinyere[13] states that corporations do not constitute mere fiction but subsist, occupy major positions within the organization of our society, and like human beings are capable of causing harm. Consequently, it is only just and consistent with the principles of equality before the law to treat them like natural persons and hold them liable for offences that they may commit. In arguing on the issue, whom the hammer of corporate criminal liability should fall on, Chinyere maintained that where corporate criminal liability is in issue, those that may be held liable include the corporation itself, members of the corporation and officers of the corporation. Regarding how corporate criminal liability could be imputed to corporations, Chinyere maintained that the circumstances under which corporate criminal liability could be imputed to corporations include instances when an employee acted within the scope and nature of his employment, or the employee acted at least in part to benefit the corporation, or intent is imputed to the corporation or, where the criminal act is the policy of the corporation’s internal decision-making procedures, or where such an act is encouraged to be committed by the corporation. However, on the issue as to whether the corporation is to be held criminally liable in all respects of the act of individual employees, Chinyere maintained that the corporation shall be liable unless it is shown that the corporation has done everything in its power to prevent such wrongdoing from occurring.

Even though Chinyere’s work provides a valuable reference material by discussing when and how the state of mind of particular human beings may be imputed to the corporation such that the corporation itself may be said to have the state of mind, the author has failed to examine criminal sanctions and their role in controlling corporate crime.

As regards the degree of criminal punishment on corporations, Lott Jr[14], posited that criminal proceedings involving corporations, as a definite entity, requires higher level of proof than would attain in civil proceedings but that the ultimate penalty is conviction to pay fine and not imprisonment. Also, Wells[15] maintained that corporations are legally deemed to be single entities distinct, and separate from all the individual who composed them and subject to incur civil as well as criminal liabilities where Jurisdictions so allow. The author expresses the view that corporate liability for crime has appeared on the agenda in many jurisdictions and at the level of international bodies such as the Council of Europe[16] and the European Union. In considering liabilities of corporations’ vis-à-vis criminal offences committed by corporations, Wells identified the theories upon which corporations could be held criminally liable to include the vicarious liability theory, the alter ego (identification) theory, and the modern holistic theory. She, however, stressed that the theories have rarely been applied to serious criminal offences such as corporate manslaughter. However, she views this as a limitation of the theory which has led to a debate on the more appropriate mechanism for establishing corporate culpability, with regard to bringing manslaughter prosecution against corporations. Wells finally suggested that the institutional arrangements for enforcement and the structure of penalties should be taken into consideration in assessing the effectiveness of corporate criminal liability rules.

The learned author has failed to state whether the corporate fault model as a basis for the imposition of liability on corporations is suitable for corporate killing. Wells also failed to state whether this principle has also not stay away from the established principle of individual criminal responsibility, rather than collective mens rea.

The view expressed by Stessens[17] is the fact that nowadays, an important part of crime takes place through companies which compels every legal system to take action in prosecuting corporations. He maintains that the only effective way to combat corporate crime is to direct punitive sanctions against corporations. To prosecute individual workers only is not simply unfair, it is ineffective too. He examines the question of how to punish corporate criminality in comparative perspectives. He compares the national law system of some countries, like USA, France, the Netherlands, Germany, Canada, England and Wales. This comparison helps to bring out a clearer view of the advantages and disadvantages of corporate criminal liability. He further maintained that the only effective way to combat corporate crime is to direct punitive sanctions against corporations. Though Stessens has extensively examined the corporate criminal liability, and has shown that criminal sanction on corporations is preferable to civil sanction, he has not shown clearly how the sanction should be executed when imposed.

Anyanwu[18] says that before now at common law, it was virtually impossible for a company to incur criminal liability, especially with offence which requires mens rea. He pointed out that with the passage of time, the problem of fixing the will or mental fault of an artificial personality which a company is was taken care of in the case of H. L. Bolton (Engineering) Company Ltd v. T. J. Graham and Sons Ltd[19] in which the court held that the directors and managers who represent the company are the directing mind and will of the company and control what it does. He further says that after solving the problem of mental element, it appears that the only obstacle in corporate criminal liability now is how to impose a commensurable punishment, especially where only imprisonment is provided for. He identifies as a fact that under the Penal Code in Nigeria, the corporate criminal liability seems as uncertain as it is under the criminal code. He states however that section 24 of the Criminal Code and section 48 of the Penal Code reflect the nature of criminal liability which merely states the fundamental and wide principles, the exact extent of which is uncertain. He concludes with a suggestion that our law makers should consider the reforms in this aspect of the law in line with the recent development in other jurisdictions. Anyanwu’s work focused on the traditional position of the common law vis-à-vis the law in Nigeria, that is, on how the problem of attributing mens rea to corporations was resolved and the inadequacy of our laws. Even then, he did not state how mens rea is to be assigned to corporations in Nigeria on serious crimes like murder, manslaughter, or negligent homicide. He also failed to state whether in our laws, there is or there is no clear basis for grounding corporate criminal liability.

Ali in his book, Corporate Criminal Liability in Nigeria[20] has made outstanding contributions in the field of corporate criminal liability. He identifies three theories upon which corporations could be held criminally liable, namely: the respondeat superior, the vicarious liability, and the alter ego theory. In analyzing these theories, he examines the corporate organizational and managerial structures with a view to pointing out that corporations could also commit corporate crime. In examining the classical bases of corporate criminal liability, he pointed out how a corporation can be held liable first, for civil wrong and, secondly, for criminal act. He acknowledges the fact that none of the models or bases of criminal liability developed so far provide complete and satisfactory considerations for liability without some difficulties. The author argues that no precise legal formula has been evolved upon which to predicate corporate criminal liability. He asks the question, “should we need to find out guilty mind at the directorial level, or should we simply judge the company by the outcome of its conduct?” The learned author maintains that it is now clearly settled that the legislature and the courts have come to recognize corporate criminal liability.

So much was gained in reading this book during research as we place significant reliance on it. However, this book did not cover corporate responsibility for murder and manslaughter in Nigeria and other jurisdictions which is intended to cover in this work

Glanville Williams in his book, Textbook of Criminal Law[21] states that a company or corporation is a legal person distinct from the human corporators who constitute its framework and it is attributively liable for its employees to the extent that a human employer is. The learned author goes further to assert that in addition, the corporation or company is identified with its controlling officers, whose acts and states of mind are imputed to it. He contends that in the case of a trading company the controllers are the directors and other person(s) (such as the manager or secretary) to who they delegate wide discretion to act on their behalf. But a branch manager who is highly controlled by a higher officer is not himself a controller. Citing the case of Tesco Supermarket Ltd v. Nattrass[22] He asserts that the company is identified with its controller even though he acts in fraud of the company, but it seems probable that the identification takes effect only in respect of acts done on company business.

The learned author in his discussion in that book did not mince words in stating that through identification the company can become liable for an offence requiring mens rea, even in circumstances where a human employer would not be liable. Interestingly, however, the learned author raised a very serious question in line with the position in this work. According to him, “Do you mean that a man can commit crimes under the disguise of a company?”

In a bid to answer this question, the learned author stated that the law recognizes corporate liability, but the device of incorporation is not a bolt-hole for people who commit offences. A company can act only through human beings, and a human being who commits an offence on account of or for the benefit of a company will be responsible for that offence himself, just as any employee committing an offence for a human employer is liable. The importance of incorporation is that it makes the company itself liable in certain circumstances for offences, as well as the human beings.

The learned author also asked another very important question which is also in line with this work as follows: “What is the point of saying that a company is a person in law?” In answering this question, the author submits that and rightly in our view that the independent legal existence of the company is useful because individual shareholders may come and go; and it has the great advantage of creating limited liability. Only the company is liable for its debts. If the company is insolvent, creditors cannot go against the private property of the shareholders. The shareholders are responsible only to the extent of their shares, and when their shares are fully paid up they are not liable at all. Few people would invest in a large company if they were liable without limit for the debts of the company if things went wrong.

Having said this, the author submits that the justification for corporate criminal responsibility is that it may help to keep the company up to the mark. Liability without fault does not create the same problems of justice as with human defendants. Fines may also compel errant companies to give up illegal profits.

This work associates itself with Williams’s submissions. However, it must be noted that Williams’s work is limited to the issue of attributing criminal responsibility to the corporations through only the management or the head of organization and nothing is said about the major role which the middle and lower management cadare play in the running of a large corporation as shown in Tesco’s case where the branch manager was seen as not acting for the company. Our study intends to fill that gap.

Ekpo in his book, Company Law Management and Practice [23] states that the organic theory as a basis of corporate liability arises from the fact that a company, upon incorporation, becomes a legal person. According to him inspite of this attribute, a company is invisible and its existence rests only in the interment and contemplation of the law. The learned author further stated that since it is not a human person, and therefore cannot do things that require human thoughts and actions, it therefore requires the assistance of natural human beings. For instance, any physical act that has to be done in order to make a company a party to a voluntary transaction or to formulate and put into effect its policies has to be done by human beings acting on behalf of the company.

He submits that although criminal responsibility requires the concordance of both the mens rea and the actus reus, this is possible by virtue of the organic theory, which attributes the state of mind of certain organs and officers of the company to it. To make his point very clear he quoted the Supreme Court’s decision in the case of Delta Steel (Nig.) Ltd v. A. C. T. Inc.[24] according to which the law requires the personal acts or faults of an individual so as to make a legal fiction like a company liable, the directors, the managers or the managing directors are in the eyes of the law, the directing mind and will of the company. And since they control what the company does, the state of mind of this special class of employees is the state of mind of the company

He also opined that section 65 of CAMA expressly renders the company criminally liable for the acts of its members at general meetings, the board of directors or of a managing director. This section supports the assertion that corporate criminal responsibility only arises from the acts of specific corporate organs whose mind can be identified as the company’s mind.

The author concluded his work by saying that it is doubtful whether a company being a non-human person can be held liable for murder and manslaughter since this entails the killing of a human being by another human being.[25] The learned author fails to state whether corporate manslaughter or gross negligence manslaughter which results from a breach of a duty of care is a crime in other jurisdictions and the position of the Nigerian law regarding the matter.

Finally, Ekpo’s book apart from essentially examining the use of organic theory as a basis of corporate criminal liability in Nigeria, failed to state whether the organic principle as it is codified under section 65 of CAMA provides satisfactory, theoretical or jurisprudence basis for attributing corporate criminal liability in Nigeria. This work intends to fill that lacuna.

In an article entitled “Corporate Crimes and Liability under the Nigerian Laws” Folorunsho traces the history of corporate criminal responsibility to England from where Nigeria inherited her corporate criminal liability. He states that in the past it was inconceivable that a corporation could be held liable for offence that requires mens rea. The learned author says at present, in Nigeria and other jurisdictions corporations are now criminally liable subject to certain limitations such as assault, murder, manslaughter and rape. He states that in Nigeria, corporate criminal liability is a recent development and as a result, cases are quite few.

According to him the Penal Code of the America Law Institute makes it clear that a corporation should only be punished or held criminally liable for conduct authorized, performed, or recklessly tolerated by its Board of Directors or by a high managerial agent acting on behalf of the corporation within the scope of his office or employment. “A high managerial agent” is defined as “an officer of a corporation, or an agent, having duties of such responsibility that his conduct may fairly be assumed to represent the policy of the corporation”[26] towards this end, the court has held that a company will be liable for the acts of its controlling officers even where the officer acted to defraud the company itself.

The author further says that this principle is also applicable in Nigeria. For instance, certain statutes provide that, where a corporation has committed an offence, its officials shall in certain circumstances be deemed guilty of that offence.

Finally the author states that corporate bodies are now held criminally liable both under the Common Law, or codes and statutes. He says that in many instances, where they have been held liable, they were fined even when there is provision for a jail term. He submits that this stand conflicts with the principles which bestow on a corporate body the attributes of a natural person with corresponding powers, benefits and liabilities.

Folorunsho did not state what should be done if a company was sentenced to imprisonment but asked to pay a fine. Thus, the author has not covered the issue of corporation sanctions which is a part of what this thesis attempts to address.

From the angle of Judicial precedents, the literature was more elaborately pronounced upon by the House of Lords, in the case of Lennard’s Carrying Company Ltd. v. Asiatic Petroleum Company Ltd.[27] where His Lordship, Viscount Haldane (as he then was) in his lead judgment succinctly fashioned a model of primary corporate criminal liability for offences that required mens rea as follows:

a corporation is an abstraction. It has no mind of its own any more 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. [28]

His Lordship further said:

If Mr. Lennard was the managing director of Lennards Carrying Company Ltd and he was aware of the unseaworthiness of a vessel in his fleet. He allowed the vessel to set sail and when the vessel was lost the plaintiffs sued when they lost cargo as a result. The plaintiff’s loss was limited by legislation unless the loss could be attributable to the fault of the defendant. Lord Haldane held that “Mr Lennard was the directing mind of the company… his action is the very action of the company itself”. Therefore, Mr Lennard’s knowledge was enough to attribute the knowledge to the defendant company and hold Lennards Carrying Co Ltd liable.

Also, in Canada, in the case of Canadian Dredge and Dock Company v The Queen[29] the Supreme Court in a bid to determine when and how the state of mind of particular human beings may be imputed to the corporation, such that the corporation itself may be said to have the state of mind stated thus:

The category of directing mind can be found in different geographical locations in such a decentralized corporate environment[30] to include the board of directors, the managing director, the superintendent, the manager, the chief financial officer or anyone else delegated by the board of directors to who is delegated the governing executive authority of the corporation.

The Nigerian courts on the other hand, have ruled consistently in favour of the identification doctrine. The case of Yesufu v. Kupper International N. V, [31] is an example of such decisions. Where the Supreme Court observed that:

A director of a company is the very corpus, the think – tank the alter ego and the directing mind and will of the company. The court went further to say where the law requires the personal acts or faults of an individual so as to make a legal fiction like a company liable, the directors, managers or the managing directors are in the eyes of the law, the directing mind and will of the company.

The author concedes that the decision of the English House of Lords in the Lennard’s case has made valuable contribution for developing a theory that attributes the mental element of human agents to that of a company and has been of a great persuasive value to the court in Nigeria and other jurisdictions. However, the principle enunciated in this case did not cover the subject matter of this work because only the senior management or the head of the corporation can be successfully identified with the company. This analogy does not take into account the major role which the middle and the lower management play in the running of a large corporation.

The Companies and Allied Matters Act which is the principal legislation on companies’ law and practice in Nigeria equally recognized the issue of corporate criminal liability and the place of the mental element of corporations and companies registered under the law. Section 65 of CAMA states inter alia that:

Any act of the 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 and civilly liable therefore to the same extent as if it were a natural person.[32]

Section 66 (2) of the same Act made provision for vicarious liability of the company for the acts of its servants while acting within the scope of their legitimate employment.[33]

The case law and literature on corporate criminal responsibility were further developed by the US court in the famous case of United States v. Bank of New England,[34] where the court developed aggregation doctrine also known as collective knowledge doctrine. In this case the court aggregates all the acts and mental elements of various company employees and finds the offence if all the elements of offence are made out, though not necessarily within a single controlling mind. This approach is used in the U.S. but has been rejected in England and Wales. The author is of the view that aggregation doctrine provides an alternative and more intellectually satisfying basis for determining whether the company knew or should have known of a danger, thereby attributing the aggregate knowledge of a corporate official to the company. The problems confronting the law in this area are generated by a failure to develop criteria for judging the collective processes rather than trying to establish corporate liability by resorting to the individualist approach. This doctrine failed to assess culpability based on failure in management or company system. Our study intends to fill that gap.

The third emerging model of attribution of corporate criminal liability is to be found in the ‘corporate fault’ principle. This theory brings in the concept of ‘corporate culture’ found in Australia, and organizational forms of fault found in the United Kingdom. It attempts to locate corporate liability in the behaviour of the corporation itself. The doctrine sees a company as an independent organic entity, having its own goals and objectives which should take responsibilities directly and not derivatively, for criminal consequence arising out of the conduct of its affairs. The author is of the opinion that the organizational doctrine represents the best currently available mechanism of corporate criminal liability, by focusing on the corporate culture and permeating corporate operations and locating corporate intent in company policy.

Although statute laws in Nigeria such as the Penal Codes, the CAMA and other statutory enactments recognized a variety of crimes which may be committed by corporations, a careful look at those legislations revealed that they fail to provide any clear basis for grounding corporate criminal responsibility especially as it relates to serious offences which requires both actus reus and mens rea. Nigerian criminal and corporate law, unlike what obtains in the United Kingdom and other jurisdictions lacks a direct and clear legislation on corporate manslaughter despite the wave of killing and deaths arising from corporation’s activities in Nigeria, as witnessed in incessant reports of collapsed buildings, airplane crashes, oil pipe and so on. The existing modes of sanctioning corporation are also inadequate.

The Criminal Code was made applicable to Nigeria by Lord Frederick Lugard in 1916, and it has since been applicable for more than 97 years now without any review or reform. The Companies and Allied Matters Act which is the principal legislation on companies’ law and practice in Nigeria first came into operation in 1990 and it has since been in force for more than 23 years now without reform. Other statutory enactments such as: the Federal Environmental Protection Act,[35] (FEPA), the National Drug Law Enforcement Agency Act,[36] Harmful Waste (Special Criminal Provisions) Act,[37] Trade Malpractices (miscellaneous offences) Act,[38] the Companies Income Tax Act,[39] and Money Laundering Act,[40] are a few examples of corporate laws which also need a review. The neglect of these legislations formed a theoretical framework for a call for a reform of these laws in concert with current practices in other jurisdictions such as the United Kingdom, the United States, Canada, Australia and even a civil law country of Netherlands. The reform of the Nigeria’s corporate criminal law is long overdue.

1.4 Research Questions

The obstacles encountered in the late 20^th century and the very early 21^st century even up till now is that corporations being abstract entities cannot have the mens rea or guilty mind to commit an offence and that corporation cannot be imprisoned, the only other remedy left is that of fine, which merges criminal liability with civil law. It is further argued that the impossibility of jailing an organization foils any attempt to attain the goals of deterrence, punishment and rehabilitation pursued by penal sanctions.[41]

Therefore, the ascription of criminal liability to corporations raised some conceptual questions which this study seeks to provide answers to in the form of the following research questions:

(1) Why prosecute corporations?

(2) Why do we say a company is a person in law?

(3) When can the state of mind of particular human beings be imputed to the corporation, such that the corporation itself may be said to have the state of mind together with the physical element to constitute an offence?

(4) Can the corporation have a mental element or faculty in its own right?

(5) When and how can it be said that a corporation has committed an offence?

(6) Does the Nigeria have adequate laws to hold corporations liable for corporate manslaughter?

(7) How may a corporate manslaughter bill pending before the National Assembly resolve the problem of avoidable death involving corporate entities?

(8) Given that a corporation can commit an offence and has in fact committed an offence, how would it be tried?

(9) Where a corporation has been prosecuted to conviction, what mode of sentencing would be applied? and,

(10) Can corporations suffer criminal sanctions?

The main purpose of this study is to seek solutions by answering these questions to which answers are yet to be fully found.

1.5 Objectives of the Study

This study seeks to attain the following objectives:

To examine the concept of corporate criminal liability;
To assess the historical development of corporate criminal liability in Nigeria and other jurisdictions;
To show that corporations can have the state of mind together with the physical element necessary to constitute an offence. That is to say, when can the state of mind of a particular human being be imputed to the corporation such that the corporation itself may be said to have the state of mind together with the physical element to constitute offence.
To identify the sources of the law relating to corporate criminal responsibility in Nigeria;
To establish conceptual and legal basis for corporate criminal liability in Nigeria;
To examine the legal framework for corporate crime in Nigeria and other common and the civil law countries;
To ascertain the extent to which Nigerian law deals with corporate manslaughter and the problems of corporate killing in work places;
To determine how adequate the provisions on corporate criminal liability are in Nigeria;
To examine different models or theories used by the courts in a bid to place liability for crimes on corporations, including the merits and demerits of each approach in an attempt to discern which principles are best suited to holding corporate entities accountable.
To ascertain the adequacy and efficacy of existing mode of sanctioning corporations in Nigeria;

Research Methodology

The methodology adopted in this work is doctrinal. This involves desk and library research; relying on primary and secondary source materials. The primary sources relied upon include interviews and discussions with criminal justice officers as well as fact finding visits to the courts and interactions with some members of the National Assembly. The secondary source materials were text books, journal, articles, and commentaries, magazines, newspapers, law reviews, statutes, case laws, legal news, conference papers, internet materials, encyclopedia and legal periodicals. The method adopted is descriptive, analytical and comparative. It is descriptive and analytical because the study describes and analysis the state of legislation in Nigeria as it relates to the area of focus in this work. In order to bring out best practices, some comparative analysis were made, using relevant internet materials to compare what is obtainable in other countries, in an attempt to discern which models are best suited to hold corporate bodies accountable, so that, Nigeria can borrow ideas to strengthen her legal regime. The work also adopts a jurisprudential analysis with the help of case law and judicial pronouncements in certain cases to justify contemporary models used by the courts to hold corporations liable on the crime that require mental element.

1.7 Significance of the Study

The study is significant because it hopes to reveal the inadequacies of the corporate criminal law in Nigeria, and, in particular, the restrictive application of identification doctrine by our courts as against the liberal approach in other jurisdictions.

It is against the backdrop of such inadequacy, that this work advocates that Nigeria as a modern country enact a comprehensive law on corporate criminal liability that will take into consideration our peculiar local circumstances and the wave of the internationalization of corporate related crimes. This will bring the basis of our criminal jurisprudential concept in line with the modern approach obtained in other jurisdictions such as England, America, Australia and Canada.

The findings of the study provide a plausible set of arguments for the institution of corporate criminal liability in Nigeria from a comparative perspective. This set of arguments draws from a critical assessment of the different approaches to corporate criminal liabilities that have been used by both the common law and the civil law countries. Questions related to the efficiency of criminal liability and the ability of corporations to act and have mens rea, which are the pillars of a theory of criminal liability, are examined. The purpose is to offer a more comprehensive approach to the problem of corporate criminal liability in Nigeria. It is hoped that this work will contribute to a clarification of the issue of corporate criminal liability for Nigerians which is a controversial topic in the world today.

The study is expected to provide useful inputs to the Law Reform Commission both at the Federal and the State levels, as well as law makers, judicial officers, legal practitioners, scholars, the media and the National Judicial Institute, shareholders and indeed corporate directors, officers and agents.

The findings of the study could provide information to corporations in Nigeria on how they may avoid or minimize criminal liability for illegal acts of their officers, agents and employees. They could use the information to draw and implement an effective compliance programme, accept responsibility for any corporate wrong doing, and conduct internal investigation. Before they could take steps to avert or minimize the consequences of an indictment, the corporation must understand what is meant by “corporate criminal liability” and the standard acceptable elsewhere. It is hoped that the outcome of this study will contribute to shaping up the laws of corporate criminal liability in our legal system, and, ultimately, contribute to the development of cogent jurisprudence that is progressive in the world.

1.8 Scope of Study

This study focuses on how the courts and the legislatures in Nigeria and other jurisdictions have devised some theories and evolved legal basis in a bid to place liability for crimes of intent on large scale corporations and companies registered under the law. The work is limited to issues of crimes committed by the corporations itself, rather than on its individual actors/agents. It examines the responsibility of officers of companies in executing policy decisions of the company, who acts on behalf of the company and intentions may be imputed to the acts and intentions of the company itself, so as to bind the company criminally. This work also seeks to discus corporate manslaughter as a crime both under the common law and the civil law countries. The aim is to see the extent to which Nigerian law deals with the problem of corporate manslaughter and to make recommendations based on the development in this area of law in other jurisdictions. To achieve this objective, the work is divided into ten chapters with clearly designated major and sub-headings. Chapter One introduces the study and provides the justification thereof. Chapter Two traces the roots, explaining in the process the historical background and the legal evolution of corporate criminal liability until the contemporary era. The third chapter examines the theoretical and conceptual foundation on which this study is built. The chapter also examines the main concept of a “corporation” and the basic elements of crime, its theoretical and legal connotations and its impact and contribution to modern business. Chapter Four discusses the rationale of corporate criminal responsibility. Chapter Five examines management organs and the division and exercise of powers between the corporate organs. Chapter Six focuses on a critical analysis of the common law basic theories of corporate criminal liability. In Chapter Seven, statutory approach to corporate criminal liability in Nigeria and other jurisdictions have been given a detail analysis. The discussion in Chapter Eight is on the problems of corporate trials in relation to arraignment, trail procedure and enforcement of criminal sanctions on corporations in Nigeria. The Chapter will also discuss the responsibility of officers and other agents of corporations. Attention in Chapter Nine is on incidents of corporate manslaughter in the work place and the extent to which the Nigerian law deals with the problem of corporate killing. Chapter Ten focuses on criminal sanctions and their role in controlling corporate crime; and, finally, Chapter Eleven presents the recommendations and the conclusion of the research. Bibliography wraps up the work.

1.9 Definition of Terms

1.9.1 Corporation

A corporation or ‘body corporate’ is a legal person having a legal identity separate and distinct from its members. It is an artificial personality whose existence is maintained by a constant succession of new individuals who replace those that die or are removed. There are two kinds of corporations:

(1) Corporation sole, consists of a single person who is the holder for the time being of a perpetual office, for example, the office held by a government minister or clerical bishop is a corporation sole.

(2) Corporation Aggregate, consists of a group of persons contemporaneously associated such that they form a single person in the eye of the law; for example, a limited liability company or a public corporation. The most common form of a corporation in Nigeria is the limited liability company also commonly referred to as the registered company. Professor G. Amadi in his book Jurisprudence of Trade Union Status[42] says that the commonest of such entities is the limited liability company or simply, the corporation. It is these companies that are regulated by the Companies and Allied Maters Act, 1990 (as amended). However, not all companies known to us constitute the focus of this work.

Corporate Crime

The term, “corporate crime” has two meanings. First, ‘Corporate crime’ may refer to crimes committed against the company which may be in the nature of expropriation of corporate opportunity for instance, fraudulent trading or insider dealing, breach of fiduciary duty and so on against the company. The term may also refer to crimes committed by the company itself as a legal person. This research work therefore, is concerned with crimes committed by the company or the crimes which the firm is a perpetrator.

Criminal Liability

The Criminal Code defines Criminal responsibility as liability to punishment for an offence.[43] The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a criminal act: Any activity that transgresses criminal law, while having had a guilty state of mind. For an act to fall under the category of a crime it must posses two elements, these elements are popularly expressed in Latin maxims as actus non facit reum and nisi mens sit rea (actus reus and mens rea for short). The physical elements are collectively called the actus reus and the accompanied mental state is called the mens rea. It is the fundamental duty of the prosecution to prove both of these elements of the offence to the satisfaction of the judge or jury beyond reasonable doubt. In the absence of such proof the defendant will be acquitted.

1.9.4 Criminal Responsibility

The words “criminal responsibility” means liability to be punished for an offence.

1.9.5 Responsibility and Liability

The terms “responsibility” and “liability” in legal parlance mean one and the same thing, but the use of the word “responsibility” in this work is to reflect a similar word used in our Criminal Code Act Chapter Five and the Penal Code Act Chapter Two. In this work the words “responsibility” and “liability are used interchangeably. The word “responsibility” refers to the state of being responsible or a thing one is responsible for.[44] The word “responsible” means among others being the primary cause of something and so able to be blamed or credited for it.[45] The word “liability” means the state of being liable.[46] The word “liable” means responsible by law or legally answerable.[47]

1.9.6 Corporate Manslaughter

The term corporate manslaughter is defined as an unintentional killing of a human being for which a corporation is responsible. In other words, when an individual kills another person without the intent to do so, it is often referred to as manslaughter. Section 317 of our Criminal Code[48] provides for the definition of manslaughter thus: a person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter. The Concise Oxford Dictionary[49] defines it as the crime of killing a human being without malice, aforethought, or circumstances not amounting to murder.

1.9.7 Doctrine

This means a principle, especially a legal principle that is widely adhered to.

1.9.8 Principle

This means a law, a rule or a theory that something is based on.

1.9.9 Theory

A formal set of ideas that is intended to explain why some happens or exists or the principles on which a particular subject is based.

1.10 Conclusion

The scope of this work has been defined vis-à-vis its framework. Some concepts have been defined. The various meanings ascribed to corporate crime and various ideas held by scholars and jurists have been examined. A review of related literature on corporate crime reveals that a lot of energy has been exerted by scholars and courts alike in dealing with the issue of corporate crime, but none of the theories provides complete and satisfactory considerations for liability without some drawbacks.

A careful consideration of the literature reviewed shows that the debate on appropriateness of attributing criminal liability to corporations is not yet over. It has been identified that the models of vicarious liability and identification liability incorporated into the Nigeria Legal System are both based upon the requirement of individual culpability. The assumption that corporate liability must be derivative is ineffective to deter corporate crime and has come under increasing attack from legal commentators and law reform commissions, who all attempt to locate criminal liability on an organization basis. It is desirable for Nigeria to enact into her legal system a more direct approach which moves away from individualistic liability toward assessing culpability based on failure in management or company system. The necessity of this research is further emphasized by the fact that the provisions of the laws under the criminal and penal codes in Nigeria seem to be uncertain in the area of corporate manslaughter unlike what obtains in other jurisdictions. The protection afforded the employees in the course of executing their work or members of the pubic through the use of the goods and services provided by the corporations under our laws are inadequate. This position appears to have been made worse by the attitude of our courts with regards to the issue of holding corporate organizations criminally liable for negligent or reckless act and omissions in the conduct of their business despite consistent wave of killings and deaths arising from corporate activities in Nigeria. This work therefore does not attempt to utter the final word or draw conclusions on corporate criminal liability for the Nigerian legal system, but intends to offer a good picture of some models used by the courts in other jurisdictions. This is done in a bid to place liability for crimes of intent on corporations and whatever advances that such a picture can provide, so as to recommend a model or a combination of criminal models that will help in combating corporate crime in Nigeria. This work is also an attempt to weaken the argument that criminal law cannot be used against corporations on serious crimes. The foregoing review flows into the next chapter of this work.

[1] Arthur Andersen LLP. v U.S., 544 U.S. 696 (2005).

[2] For a detailed list of the top 100 corporate criminals see Russell Mokhiber, Top 100 Corporate Criminals of the Decade, at http://www.corporatepredators.org/top100.html., (accessed on January 17, 2011).

[3] D. Barstow & L. Bergman, “Deaths on the Job, Slaps on the Wrist”, (2003), N.Y. T, Jan. 10, p. 1.

[4] L. Ali, Corporate Criminal Liability in Nigeria, (1^st edn., Malthouse Press Limited, Lagos, 2008), p.181.

[5] Four of the five bank chiefs sacked by the Central Bank of Nigeria Governor were arraigned before a Federal High Court on five separate charges of 131 counts bordering on fraud, concealment and grant of loans without adequate collateral running into about N625.95 billion. This Day, Tuesday September 1, 2009, p. 1.

[6] For more discussion on these problems and their nature see for example, B. Fisse & J. Braithwaite, “The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability’’, Sydney Law Rev., vol. 11 (1988), pp. 469 -513.

[7] S. Laufer, “Corporate Bodies and Guilty Minds, The Failure of Corporate Criminal Liability”, University of Chicago Journal, vol. 1 (2007) pp. 29-32.

[8] B. Sheehy, “A Book Review of Corporate Bodies and Guilty Mind, The Failure of Corporate Criminal Liability” by S. Laufer, (2007) School of Law, University of Newcastle, NSW. Email: [email protected].

[9] K. Aggarwal, “Corporate criminal liability – the issue revisited in the context of recent

Supreme Court decision”, Available at: http://www.ulcc.ca/en/criminal/index.cfm?sec=3&sub=3e (last visited on 12/9/2009).

[10] S. Podgor, “A New Corporate World Mandates a Good Faith Affirmative Defence.”

Criminal Law Review, vol. 44 A M (2007) pp 1537-1538.

[11] S. Beale, “A Response to the Critics of Corporate Criminal Liability” Criminal Law

Review, vol. 8 (2004) pp 89-90.

[12] S. Florin & R. Chirita, Raspunderea Penala a persoanci Juridice (edn., 7 Rosetti 2002) p. 34, Citing C. Wells, Corporations and Criminal Responsibility (Claredon Press, 1993) p. 96.

[13] C. Chinyere, “Corporate Liability for Crimes”. AJBPCL vol. 1 No.2 (2009) at p. 46.

[14] J. Lott. Jr. “Corporate Criminal Liability” Journal of Business, Vol. 69 (1996) pp 339-382.

[15] C. Wells, Criminal Responsibility of Legal Person in Common Law Jurisdiction: A paper

for OECD Anti-Corruption Unit Working Group on Bribery in International Business Transactions. Paris 4^th October, 2000.

[16] Ibid.

[17] G. Stessens, “Corporate Criminal Liability, a comparative perspective”, International and

Comparative Law Quarterly, Vol 43 (1994) pp 495-519.

[18] C. Anyanwu: An Outline of Nigerian Criminal Law, Kasimefuna publication, Enugu

(2009).

[19] (1957)1 QB at p. 159.

[20] L. Ali, Corporate Criminal Liability in Nigeria, (1^st edn Malthouse Press Limited,

Lagos 2008).

[21] G. Williams Criminal Law (2^nd edn., London Stevens & Sons 1983) 15. 19.

[22] 28.1.

[23] (1996) 5 N.W.L.R (pt.416) 17 at 29, see also, UBN Plc. v. Orharhuge (2000) 2 NWLR (pt. 645) at p. 495.

[24] (1999) 4 NWLR (pt. 597) at p. 53.

[25] R v. Murray Wright Ltd. (1970) NZLR at p. 470.

[26] American Law Institute, Model Penal Code, proposed official draft, 1963, S. 207 Quoted by A. Aguda, Principles of Criminal Law (2^nd edn., Ibadan University Press, (1990) p. 3309.

[27] (1915) A.C. at p. 705.

[28] Ibid, at p. 713.

[29] (1983) 19 C.C.C. (3^rd) 1 at p. 22.

[30] The effect of this is that directing mind can be located at a lower level within the corporate structure.

[31] (1996)5 NWLR (pt. 416)17 at p. 29.

[32] S. 65, Cap C20 LFN, 2004.

[33] S. 66 (2), ibid.

[34] (1987) 821 F2d at p. 844.

[35] Cap F10, L.F.N, 2004 (as amended).

[36] Cap N 30, L.F.N, 2004. (as amended).

[37] Cap H 1, L.F.N, 2004 (as amended).

[38] Cap. T.12, LFN, 2004 (as amended).

[39] Cap. C21, LFN, 2004 (as amended).

[40] Cap. M18, LFN, 2004 (as amended).

[41] Anne-Marie Boisvert, “Corporate Criminal Liability” A Discussion Paper, available at: http://www,ulcc.ca/en/criminal/index.cfm?sec=3&sub=3e, (last visited on 12/9/2009).

[42] G. Amadi, Jurisprudence of Trade Union Status (1^st edn., Afro-Orbis Publication Limited Nsukka 2012), p. 38.

[43] S. 1, Cap. C41 LFN, 2004,

[44] C. Soanes & A. Stevenson, Concise Oxford English Dictionary (11^th edn; Oxford

University Press, 2004) p. 1226.

[45] Ibid

[46] Ibid, at p. 820.

[47] Ibid.

[48] Section 317, Cap C38 LFN 2004

[49] A. Honby, Oxford Advanced Learner’s Dictionary (6^thedn. Oxford University Press), p. 719.

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DEVELOPING AN EFFECTIVE LEGAL FRAMEWORK FOR CORPORATE CRIMINAL LIABILITY ADMINISTRATION IN NIGERIA

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DEVELOPING AN EFFECTIVE LEGAL FRAMEWORK FOR CORPORATE CRIMINAL LIABILITY ADMINISTRATION IN NIGERIA

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