The Penal Codes of Northern Nigeria and the Sudan
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BOOK REVIEWS
The Penal Codes of Northern Nigeria and the Sudan: By Alan Gledhill.
[London: Sweet & Maxwell. Lagos: African Universities Press. Law in Africa No. 8. 1963. iii and
820 pages. E7. 7. Od.]
. The essence of the Codes considered in this book has a distinguished history. The Penal Code
of Northern Nigeria, enacted in 1959, was based on the Penal Code of the Sudan, enacted in 1899,
which in turn was based on the Indian Penal Code drafted by Lord Macaulay between 1833 and
1837, and brought into force in 1860. In his Chapter 2 Professor Gledhill quotes Macaulay's
view that a code of laws was perhaps the only blessing which an absolute government was better
fitted than a popular government to confer on a nation, and it is a matter for congratulation that
in Northern Nigeria it was a popular government that chose to adopt the Penal Code.
Macaulay possessed two useful qualifications in a codifier-supreme self-confidence and
unsurpassed clarity of language. The Northern Nigerian Penal Code retains much of the clarity
of its prototype, and seems better fitted than the Criminal Code of the rest of Nigeria both for
administration by those whose mother tongue is not English and for translation into other languages,
which may be among the qualities that recommended it to the Northern Nigeria legislature.
Culpable homicide punishable with death, an expression devised specially for the Northern
Nigerian code, lacks the emotional implications as well as the brevity of murder, but at least it
is readily intelligible.
The need for a comprehensive commentary on the Northern Nigerian code has been plain
since its introduction. The annotated edition by Mr. S. S. Richardson, though valuable,
has a deliberately limited scope, being designed primarily for the guidance of Native Courts, and
there are dangers in using commentaries on the Indian Code when construing another code.
Professor Gledhill's book amply meets this need. Its author has the advantage of having
administered the Indian Penal Code for a quarter of a century and taught it for fourteen years,
and his intimate knowledge of that code enables him to present each of the codes on which he is
commenting as a connected whole and to assess the bearing of one section on another, which is
the essence of construing a code. He goes through the codes on which he is commenting, setting
out the text of each section and following it with a lucid discussion of its interpretation, supported
with a wealth of examples taken almost entirely from Indian case-law. Comparisons are drawn
with the Indian code and with English law, but not, in general, with the Nigerian Criminal Code,
though for use in Nigeria, where the Penal Code is still new, and where both the practitioner and
the Nigerian policeman must be familiar with both codes, it would have been helpful if some of
the major differences between the two codes, such as that concerning insanity as a defence, had
been pointed out.
A comparison between the two codes as regards the law of homicide and the use of force generally
is perhaps a subject for a separate essay rather than for a text-book on the Penal Code, but two
points may be mentioned here. Section 222(5) of the Penal Code, under which, if a person over
eighteen suffers or risks death with his own consent, the killing is not punishable with death, has
no counterpart in the Criminal Code. Again, s. 222(2) of the Penal Code provides that culpable
homicide is not punishable with death if it results from the use of excessive force in good faith and
without malice in exercise of the right of private defence, and this is in conformity with what
was held to be the law under the Criminal Code in R. v. Dangar, 10 W.A.C.A. 225, but in discussing
the right of private defence Professor Gledhill would make it more restricted than it was held to
be in that case. Under s. 64 of the Penal Code, there is no right of private defence against any
act which does not reasonably cause the apprehension of death or grievous hurt, if done by a
public servant doing an act justifiable by law and in good faith, and Professor Gledhill suggests
at page 138 that the right is excluded where a policeman in uniform carries out an arrest without
warrant in good faith but under a misconception of fact. This would make the right of resistance
depend on the state of the policeman's mind, which the person arrested could not know, but Pro-
fessor Gledhill argues that the policeman could claim the protection of s. 45 of the code, and that
his act would therefore be justifiable by law. What s. 45 says is that no offence is committed by a](ViewImageLocal?handle=hein.journals/nlj1&div=21&collection=&method=preview&ext=.png&size=3)
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The Penal Codes of Northern Nigeria and the Sudan
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