NIGERIA AND ARGENTINA CRIMINAL LAW: A COMPARATIVE
THE NIGERIA CRIMINAL LAW
Criminal Law is the principal law on crimes. It is not contained in any single
statute book or even a fend. This tends to suggest that a good way to study the
criminal law is to study one statute
after another. This may prove difficult because the catalogue of Criminal Law
has not been compiled, nor is any attempt being made. Since the Criminal Law is
all about crime, a better approach may be to study one crime after another. The
number of acts and omissions that are forbidden by Criminal Law are
inexustable. More are still being created directly or indirectly few are
de-criminalised. The existing ones are either expanded
or contracted in extent and scope through
may be another approach. Form the works of earlier writers, it may be possible to isolate certain features that may be
common or different in a majority of crimes and make those features the subject
of study. This is the approach adopted
in this course.
Criminal Law is a reflection of the fundamental character and intellectual life
of the society in which it operates. Customary Criminal Law once prevailed but
It was largely unwritten. It has given way to written law. Thus Customary
Criminal Law has remained part of the law of crime to the extent it is written.
course consists of 21 Units of study and adequately takes care of the
conveniences of the students whom we know are working and at the same time
learning. This Course Guide offers you in a nutshell, what the Criminal Law is
about: it gives you an insight into the course materials which have been
deliberately compressed in order to ensure that you are able to cover as much
as possible within the given period.
1.2 THE ARGENTINA
Argentine nation adopts for its democratic government the Representative,
Republican and Federal form. It is representative because the country
is governed by representatives of the people. It is republicanbecause
people elect their representatives through vote, because the country is
governed by a tripartite system made up of an Executive Power, a Legislative
Power, and a Judicial Power, and because Argentina adopts a written
Constitution. Finally, it is federal because the provincial
governments keep their self-rule despite responding to a common government (The
National government). The nation adopts this form of government as established
by the National Constitution,
passed on 1853.
text was modified in 1860 when the province of Buenos Aires is included, since
it was not part of the Argentine Confederation in 1953.
in 1949, a constitutional convention replaced the 1853/1860 text for a new one
which was rendered null and void by the provincial government through the April
27, 1956 proclamation that replaced the previous text. The National Convention
approved the constitutional reforms on August 22, 1994 which became effective
on August 24, 1994.
reforms refer, fundamentally, to the organic part of the Constitution.
Argentine Republic comprises 23 provinces and the city of Buenos Aires. The provinces are Buenos
Aires, Catamarca, Corrientes, Córdoba, Chaco, Chubut, Entre Ríos, Formosa,
Jujuy, La Pampa, La Rioja, Mendoza, Misiones, Neuquén, Río Negro, Salta, San
Juan, San Luis, Santa Cruz, Santa Fe, Santiago del Estero, Tucumán, and Tierra
province has its own constitution which must state its administration of
justice and municipal autonomy, and the scope and content of its institutional,
political, administrative and financial orders.
province also elects its own authorities: Governor, Legislators and other
provincial officers. They dictate their regional legislation through local
institutions and are entitled to enter into international agreements as long as
they abide by the national foreign policy and do not affect the Federal
government faculties or the National public credit. Likewise, they
are allowed to enter into partial treaties supported by the Federal government
for the purposes of justice administration, economic interests and public interest
shall not execute partial treaties on political matters, enact commercial,
interior or exterior navigation laws, set up provincial customs, mint currency,
set up banks with bill issuance power without the Federal government
authorization, dictate the Civil, Commercial, Criminal and Mining codes after
being approved by the Congress, pass laws related to citizenship and
naturalization, bankruptcy, currency forgery or state documents, establish
tonnage rights or set up warship, neither shall they appoint or receive foreign
constitutional legal code established for the Argentine nation, since 1853, the
above mentioned form of government, divided into the executive, legislative and
1.3 THE COMPARISM
Argentina’s criminal code,
the Código Penal (CP), was adopted
in 1921. The current CP was
intended “to capture in a simple and pragmatically oriented
text the basics
of the Tejedor Code and
the 1891 draft,” and
to a significant extent it succeeded: the
CP established a simple regime of sanctions, abolished the death penalty, and endorsed straightforward rules of responsibility and definitions of offenses. However, as Marcelo Ferrante
notes, the numerous minor
reforms and amendments adopted since 1921 have as
is often the case
codes that are updated in piecemeal fashion “introduced complexity into an otherwise relatively simple text, often
affecting the code’s
systematicity.” Ferrante offers
a particularly striking example
of this in the area of punishment: possessing explosives in Argentina is now subject
to longer imprisonment (5 to 15 years) than detonating the explosives
destroying goods or endangering human
life (3 to 10 years) while human trafficking is about
10 to 15 years in Argentina.
the year 1999 Nigeria move for the adoption of the criminal code of 419. Some
offenses purnishable by law to mention but a few; consider the case of a person
caught with explosive, the maximum time in prison is from 5 to 10 years then human
trafficking in Nigeria can take from 10 to 30 years inprison.
1.4 JURISDICTION IN
Jurisdiction is genuine and fundamental in every proceeding
in court. If a court adjudicates over a matter which it has no jurisdiction, no
matter how brilliant the judgment is, its efforts and proceedings are nullity
Jurisdiction may be by reference to constitution or
composition of the court. The law specifies the number of judges that must seat
in a given matter failing which the court cannot competently handle the matter.
Jurisdiction may also be determined by
geographical area of operation of the court.
The leading authority on the essentials of jurisdiction is
the case of Madukolu V. Nkemdilim (1962) S.C.N.L.R 341. A court has
i. When it properly constituted as regards
members and qualifications of the members of the Bench and no number is
disqualified for any reason.
ii. When the subject matter of the case is within its
iii. And when the case comes before the court
initiated by due process of law, and upon fulfillment of any condition
precedent to the exercise of jurisdiction.
CFRN 1999 established seven (7) superior courts of record in
Nigeria and confer on them both original and appellate jurisdiction in respect
of certain matters.
CATEGORIES OF COURTS IN NIGERIA
1. Supreme Court
2. Court of Appeal
3. Federal High Court
4. High Court of the Federal Capital Territory
5. High Court of a State
6. Sharia and Customary Court of Appeal of the Federal
7. Sharia and Customary Court of Appeal of a
COURT OF NIGERIA
This is the highest in the hierarchy of courts in Nigeria.
Section 232(1) of CFRN 1999 provides for the establishment of the Supreme
The composition consists of the Chief Justice of
Nigeria and such number of justice not exceeding twenty-one (21) as may be
prescribed by an Act of the National Assembly.
Appointment of Chief Justice of Nigeria and
other Justice of the Supreme Court are appointed by the President of the
Federal Republic of Nigeria on the recommendation of National Judicial Council
subject to confirmation of such appointment by the senate. JURISDICTION
The Supreme Court has both original and appellate jurisdiction. Original
Section 232(1) of 1999 CFRN provides that the Supreme Court
shall to the exclusion of any other court have original jurisdiction in any
(a) Federation and a State
(b) Between States
(c) Original jurisdiction as may be conferred by the National
Additional Original Jurisdiction conferred upon
the Supreme Court by Section 232(1) shall to the exclusion of any other court,
have original jurisdiction in any dispute between:
(a) National Assembly and the President
(b) National Assembly and any State House of Assembly
(c) National Assembly and a State of the Federation
An appellate court derives its jurisdiction from the statute
creating it, including the 1999 constitution and other enabling statutory
The constitution provides that no any other
court of Law in Nigeria has power/authority to hear and determine appeals from
the Court of Appeal. The Supreme Court has the exclusive jurisdiction.
The decision/judgment of the Supreme Court is
final and appeal lies to nowhere.
Section 234 of CFRN provides that for the purpose of
exercising any jurisdiction conferred upon it. Supreme Court shall be properly
constituted if it consists of not less than five (5) justices of S.C.
However, the Supreme Court shall be duly
constituted by seven (7) justices. Such instances include the following
(i) Interpretation of Constitution
(ii) A question whether any of the provisions relating to
fundamental human rights has been, is being or is likely to be contravened, or
(iii) The exercise of its original jurisdiction
However, there are occasions where the Supreme Court can set
aside its decision in certain circumstances. Such cases are as follows:
(i) If the judgment is obtained by fraud
(ii) If the judgment is a nullity such as when the court
itself was not competent or
(iii) If the court is misled into giving judgement under a
mistaken belief that the parties had consented to it, or
(iv) If the judgment is given in the absence of jurisdiction
The Chief Justice of Nigeria is empowered under
the 1999 constitution. Section 234 to make rules for regulating the practice
and procedure of the Supreme Court.
Court of Appeal (CA) is next to the Supreme Court in the
hierarchy of Nigeria Court System. The Court is established by Section 237 of
1999 CFRN. Its composition consists of a President of the Court of Appeal and
other Justice of the Court of Appeal not less than forty-nine (49) in number.
Three of which shall be learned in Islamic Personal Law and three others
learned in Customary Law.
The President of the Court of Appeal is
appointed by the President of Federal Republic of Nigeria based on the
recommendation of the National Judicial Council subject to the confirmation of
The Court of Appeal has both original and
appellate jurisdiction. Original
Section 239 of the 1999 CFRN provides for the original
jurisdiction of the Court of Appeal in respect of the following matters.
(i) Whether any person has been validly elected
to the office of the President or Vice President.
(ii) Whether the term of the office of the President or Vice
President has ceased or
(iii) Whether the office of the President or Vice President
has became vacant.
Section 240 of CFRN provides that the Court of Appeal shall have
appellate jurisdiction to the exclusion of any other court of law in Nigeria to
hear appeals from the Federal High Court, State High Courts including FCT and
other Lower Courts.
The Court shall be duly constituted if it
consists of not less than three (3) justices of Court of Appeal.
However, it could be more than three (3) justices depending
on the nature and circumstances of the appeal or the matter before the court.
And Section 248 of the 1999 CFRN empowers the
President of the CA to make rules for regulating practice and procedure of the
court of Appeal.
This is a Federal Court established by Section 249(1) of the
1991 CFRN and consists of a Chief Judge and such number of Judges as may be
prescribed by an Act of the National Assembly.
The Chief Judge and other Judges of the Federal
High Court are appointed by Mr. President on the recommendation of National
Judicial Council subject to the confirmation of the Chief Judge only.
Jurisdiction of the FHC covers the entire country.
The Exclusive Jurisdiction of FHC according to
Section 251(1) of the 1999 CFRN covers the following matters: