Key Issue in Idika v R (1959): The meaning of Counselling or Procuring within Section 7 of the Criminal Code.
Facts of the Case
A group of men were alleged to have taken part in a society meeting where a decision was made to kill a particular individual. Following this resolution, the victim was later killed. While some members actively took part in the execution of the plan, others did not.
The central question for the court was whether those who were present at the meeting, but did not physically participate in the killing, could still be held liable as parties to the crime under Section 7 of the Criminal Code.
Legal Issue in Idika v R
The court had to determine:
Does mere participation in planning or encouraging a crime amount to “counselling or procuring” under Section 7 of the Criminal Code, even when the person does not take part in the actual commission of the offence?
Court’s Reasoning
The federal Supreme Court referred to R v. Croft where it was held that a person who enters into an agreement to commit an unlawful act may still be guilty as an accessory before the fact, unless he clearly revokes or withdraws from the agreement.
The court reasoned that those who attended the meeting had provided active encouragement and moral support. Their collective agreement to carry out the killing amounted to counselling or procuring the act, even if they did not strike the fatal blow themselves.
The judges emphasized that counselling or procuring requires some positive act of encouragement, and the presence of the appellants at the meeting where the decision to kill was made was enough to satisfy this requirement.
Abbott (Ag. C.J.F.), in his Dicta noted as follows:
“The ‘counselling’ or ‘procuring’ must involve some positive act. There must be some active encouragement to those who do the deed. But if members of a society meet, and being faced with orders to kill a particular man they decide unanimously to obey orders, each man present at the meeting encourages his fellows to kill the victim.”
“If ten men plan and encourage each member to kill A on Saturday, and that plan fails, and five of the ten kill A on Sunday, in pursuance of the original agreement to kill, it seems to me that the five who took no active part in the killing are yet responsible for the killing. They were among those who lit the fuse. Having lit it, they let it burn, with the result which they desired.”
Counselling or procuring must involve active encouragement. A person who participates in planning a crime may be liable even without taking physical part in the execution. Tacit acquiescence alone may not amount to procuring under Section 7, but can attract liability under Section 515 of the Criminal code
Principle of Law Established
Counselling or Procuring requires active encouragement, not passive acquiescence.
Presence at a meeting where a criminal plan is agreed upon may amount to counselling or procuring if such presence actively encourages the act.
Tacit acquiescence may not constitute procuring under Section 7 but could attract liability under Section 515 of the Criminal Code.
Parties to an Offence under Section 7 of Nigerian Criminal Law with Judicial Pronouncements
