Prosecution Of The Head Of Corporate Body For The Alleged Offence Of Its Company Under Section 13 Of The Gunshorts Act, LFN, 2017: A Sword More Than A Hammer By: Hameed Ajibola Jimoh Esq.

Section 13 of the Compulsory Treatment and Care for Victims of Gunshorts Act, Laws of the Federation of Nigeria, 2017-herein after referred to as the Gunshorts Act-, it is provided that ‘A corporate body that commits an offence under this Act, the head of the corporate body shall be prosecuted in accordance with the provision of sections 11 and 14 of this Act’. This paper considers the scope of this provision vis-à-vis its implications and make recommendations for an amendment of the provision. From the above quoted provisions of the Gun shorts Act, it is my humble submission that the said provision has allowed emotion and sentiments to override its public interest. I also submit that the provision has committed blunders that aim at punishing an innocent person for the wrong of another. That is, by punishing the head of the corporate body, whereas, the corporate body is a person on its own, pursuant to the provisions of the Companies and Allied Matters Act, 2004-herein after referred to as CAMA-, the Gunshorts Act is punishing the said head of corporate body for an offence that he never committed, thereby leading to an injustice. Most importantly, sections 37 and 38(1) of CAMA provides respectively provide thus ‘37. As from the date of incorporation, the subscriber of the memorandum together with such other persons as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold land, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act. 38. (1) Except to the extent that the company’s memorandum or any enactment otherwise provides, every company shall, for the furtherance of its authorised business or objects, have all the powers of a natural person of full capacity.’. The importance of the above provisions of the CAMA is that a Company (corporate body) once registered becomes a different or artificial person capable of suing and being sued in its name and also different from its members. See: the case of: Salomon v Salomon (1897) AC 22. Also, the head of the corporate body might be an employed person with the corporate body. I find it very unacceptable that he would have to bear the liability of a company just because he is the head of the company. More so, the punishment provided for under the referenced sections: 11 and 14 of the Gunshorts Act are what money or fine can solve. The said section 11 provides thus ‘Any person or authority including any police officer, other security agent or hospital who stands by and fails to perform his duty under this Act which results in the unnecessary death of any person with gunshort wounds commits an offence and is liable on conviction to a fine of N500,000.00 or imprisonment for a term of five years or both’. Also, by section 14 of the Gunshorts Act, it is provided that ‘In addition to any other penalty under this Act, the High Court shall order a person or corporate body convicted of an offence to make restitution to the victim by directing that person or corporate body to pay to the victim an amount equivalent to the loss sustained by the victim’. (2) An order of restitution may be enforced by the victim or by the prosecutor on behalf of the victim in the same manner as a judgment in a civil action’. So, if these provisions are clear to the effects that fine against a corporate body can actually solve both the penalty and the restitution (criminal and civil sanctions), why then will the head of the corporate body be made to bear the wrongs of another person (i.e. the corporate body) because the word ‘corporate body’ even though there is no interpretation of the words, will in my humble view, mean an incorporated company registered under either Part A or Part C of the CAMA, this is because, there are health institutions or hospitals that are incorporated for charitable purposes. Furthermore, this is a way of transferring the criminal acts of the corporate body to the head to bear the provision which I humbly submit that it lacks constitutional basis, except the said head too is alleged to have committed an offence in his personal capacity while discharging his duty. I humbly refer to sections: 33(1), 35(1) (c), of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. Also, it is a trite position of law that crime is in personam meaning that it cannot be shifted vicariously to another person who is innocent of the crime committed by another person, if one is to consider the decision of the Supreme Court of Nigeria in the case of PML (Nig.) Ltd, v F.R.N. (2017) LPELR, 43480 (SC), where it was held thus ‘The law is trite that there is no vicarious criminal liability in our criminal justice system. This elementary principle is to the effect that a person cannot be punished for the crimes of another’. I therefore humbly submit that the said provision of section 13 of the Gunshorts Act is null and void for running inconsistent with the provisions of the Constitution, pursuant to section 1 of the Constitution. Also, I humbly submit that the act of the legislators punishing the head of the corporate body for the wrongs allegedly committed by the corporate body is one of the legislative recklessness in a democratic civil society. I could not even make the provisions of section 7 of the Administration of Criminal Justice Act, 2015-herein after referred to as ACJA- as a reference which prohibits an arrest in lieu of a suspect because, section 13 of the Gunshorts Act places the head of the corporate body directly in position of the suspect which is the corporate body. Also. Part 47 of the ACJA has adequate provisions for the trial of a corporation. Is the legislator saying that the head of the corporate body would be prosecuted under that Part 47 of the ACJA? It will definitely be an absurdity! Perhaps the legislator intends to instill fear and diligence on the head of the corporate body, it totally when out of the law by making the head of the corporate body to be criminally responsible for the alleged criminal act of the corporate body. That is why the provision in my view, is a sword more than a hammer. Furthermore, as I have observed earlier in this paper, the Gunshorts Act did not define what constitutes a ‘corporate body’. Also, there are those hospitals that are registered under Part B of CAMA, which thereby could not be regarded as a corporate body and there are those that are not even registered at all. So, I think holding the head of the corporate body who is not even a member of a company or who might be one of the members of the company, but is not the only members of the company responsible for the criminal acts of the corporate body, is repugnant to natural justice, equity and good conscience. Finally, having argued and submitted in the above without prejudice to the submissions, I finally submit as follows:

1. The provision of section 13 of the Gunshorts Act is unconstitutional, null and void and of no effect;
2. Hospitals or their pressure groups should either institute an action in court for judicial interpretation to strike out the said provision of section 13 of the Gunshorts Act or wait till a head of a particular corporate body is made a scape goat under the said section 13 of the Gunshorts Act;

• Finally, the legislator is recommended to amend this provision of section 13 of the Gunshorts Act.