CRITICIZE THE DEFINITION OF CRIME PER

THE PENAL CODE

BY

FAITH KEN-EKRIKA
UG/19/4171

JPL 301
CRIMINAL LAW I

NIGER DELTA UNIVERSITY

SEPTEMBER 2023
INTRODUCTION
Crime has been definded by different intelligible minds. It has been assigned different
meanings by different schools of thought as expressed by different authors. Crime is a legal
wrong for which the offender is punished by the state. Crime is an act or omission involving
the breach of a duty punishable by law, in the public interest. Under the law of England,
crime is a legal wrong that can be followed by criminal proceeding which may result in
punishment. A crime is a human conduct which the state decides to prevent by threat of
punishment and through legal proceeding.
The various definitions indicate that crime is a human conduct that is proscribed with penal
consequences that may give rise to criminal proceedings and criminal punishment.
Consequently, if there are no punishments for an act, it is not a crime.
NATURE OF CRIME UNDER SOME NIGERIA LAWS
The meaning of crimes in Nigerian law appears to be in conformity with the pattern of the
general observation made by the different juristic efforts in defining ‘crime’. The word
‘offence’ has been used in both the Criminal Code and the Penal Code. Section 2 of the
Criminal Code defines offence as ‘An act or omission which renders the person doing the act
or making the omission liable to punishment under the Code or under any Act or Law’.
Section 4(2) Penal Code and the Sharia Penal Code provide that whereby any provision of
any law of the state the doing of an act, or the making of any omission made an offence, then
such acts or omission becomes crime. The Sharia jurisprudence especially the Maliki School
views crime from the perspective of belief in the revelation contained in the Qur’an (Muslims
Holy Book) and the Sunnah (saying and practice) of Prophet Muhammad (S.A.W)
embodying basic rules and command.
Crime is defined under the Islamic law or Sharia to consist of legal prohibition imposed by
Allah for which punishment is prescribed by Him for the infringement. Crime under Islamic
law is either a public wrong or a moral wrong. Crimes also have some characteristics that
generally infringe on the private right as well as having harmful effects on the public which
cannot be relieved by compensating the injured party alone. In such cases, crime becomes a
state crime. An act may be morally wrong and become crime because Islamic criminal law
relies on Holy Quran that enjoins moral virtues and the doing of good. Some of these crimes
are adultery and fornication, false accusation of zina, theft, highway robbery, alcohol
consumption and apostasy.
In essence asides from the fact that there stands a large area of divergence as regards the
regional coverage of the penal code which is only applicable to northern Nigeria and is
modelled on a Sudanese code that had successfully operated as suiting a Muslim community
as against the criminal code which is majorly used in other parts of Nigeria, and with regards
to the penal code and its various prescriptions as to what would constitute a crime and it
divergence in terminologies with the criminal code and prescription of punishments.

CRITIQUE OF THE DEFINITION OF CRIME

It can be observed that the criminal code & the penal code offered no comprehensive
definition to the meaning of a crime. Thus, section 2 of the criminal code, defines crime as
“an act or omission which renders the person doing the act or making the custom liable to
punishment under the code.”
Scholars & writers have argued that thus definition is indeed in that it is silent on the
“elements of an offence” it omitted the “mental element” & that a good definition must
accommodate both the “physical & mental element”

In the same vein, section 28 of the penal code simply provides” except where otherwise
appears from the context the word “offence” includes an offense under any law for the time
being in force”. Without doubt this definition is antiquated, failing to define the very term it
sets to define.

Diverse views & concept have been laid down by scholars, thus, crime is
“An act of default which tends to the prejudice of the community & is forbidden by law
or pain of punishment at the instance of the state”.1 Also, it was explained that “crime is
an act forbidden by law & revolting to the moral sentiments of the society.”2

Nigerian jurists have also attempted, thus, Justice Karibi-Whyte in one of his writings stated
that the only noticeable difference between the lay conception of crime & the lawyer’s
conception of it is one between what the law ought to describe & what is actually designated
namely “the ought & is” of law.
In the case of Liman v. State (2016) LPELR-40260 CA, the learned Justice Amina audi
JCA stated;
“It is trite that criminal responsibility for the commission of crime is premised on the
satisfactory proof of the two pillars if actus reus & mens rea.
In an attempt to define crime, Abiru JCA employed this view in the case of Njoku V. State
(2017) LPELR41250CA.
From the foregoing, rather than travelling on a futile voyage of discovery at ascertaining the
exact meaning and precise definition of crime, it is better to ascertain the scope and legal
framework of crime.

CONCLUSION

To this end, the classical exposition of Lord Atkin in Proprietary Articles trade
association V. A.G for canada becomes important. His lordship stated “The criminal
quality of an act cannot be discerned by intuition nor can it be discovered by reference
to any standard but one is the act prohibited by penal consequences”.3

From the above assertion, since no aggreably all encompassing definition can be offered, it
may be safe to conclude that indeed, “Crime is what the state declares it to be”. Hence,
what is without punishment is not a crime. Crime is any act punishable by the stipulations of
the state.

1
Earl Jowit
2
Sir James Stephen
3
https://en.m.wikipedia.org/wiki/Proprietary_Articles_Trade_Association_v_Canada_(AG)