Procedure for Prosecution of Corporation
In circumstances wherein the prosecution wishes to prosecute a corporation for a criminal offence under our instant Nigerian laws, there are procedural laws in place that provides for the procedures for its trial. Information may be preferred against a corporation after the preparation of the proofs of evidence relating to the charge.
Information under section 479 may include, either in substitution for or in addition to counts charging the offence for which proofs of evidence have been prepared, counts which may be lawfully joined in the same information and are founded on facts or evidence disclosed in the proofs of evidence.
Corporations, being artificial persons cannot be arrested as a means of compelling their appearance in court. Rather, summonses are served on them. A combine reading of section 104 and section 123(b), a company can be served with a court process in the manner provided by the rules of the court and the person effecting the service of summon shall effect it by delivering it to a director, secretary, chief agent within the jurisdiction, or sending it by post to the registered office or head office of the company.
The CPC, the CPA and the ACJA, provides for the mode of trial of a corporation. They all require that a corporation may be represented at the trial by ‘a representative’. A “representative” in relation to a corporation means a person duly appointed by the corporation to represent it for the purpose of doing any act or thing which the representative of a corporation is by this Part authorised to do, but a person so appointed shall not, by virtue only of being so appointed, be qualified to act on behalf of the corporation before any court for any other purpose.
However, it is pertinent to state that a representative for the purposes of this Part need not be appointed under the seal of the corporation, and a statement in writing purporting to be signed by a managing director of the corporation, or by any person (by whatever name called) having, or being one of the persons having, the management of the affairs of the corporation, to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this Part, shall be admissible without further proof as prima facie evidence that the person has been so appointed.
A representative may, on behalf of a corporation perform the following roles: (a) State, whether the corporation is ready to be tried on a charge or information or altered charge or, information to which the corporation has been called on to plead; (b) Consent to the hearing and determination of a complaint before the return date of a summons; (c) Express assent to the trial of the corporation on information, notwithstanding that a copy of the information and notice of trial has not been served on the corporation 3 days or more before the date on which the corporation is to be tried. (d) Consent or object to a summary trial.
Where a representative appears, any requirement of this Act that anything shall be done in the presence of the defendant, or shall be read or said or explained to the defendant, shall be construed as a requirement that, that thing shall be done in the presence of the representative or read or said or explained to the representative. Where a representative does not appear, any such requirement as is referred to in section 478 of this Act, shall not apply.
Where a corporation is called upon to plead to any charge or information including a new charge or information framed under the provisions of this Act or charge or information added to or altered under the provisions of this Act, it may enter in writing by its representative a plea of guilty or not guilty or any plea which may be entered under this Act and if either the corporation does not appear by a representative or, though it does so appear, fails to enter as aforesaid any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the corporation had duly entered a plea of not guilty.
The import of the above section is that;
- A plea by a corporation may be entered in writing
- The plea may be made by its representative
- Where a corporation does not appear by a representative, or where the representative fails to enter any plea, the court shall order a plea of not guilty to be entered and the trial will proceed as though the corporation had duly entered a plea of not guilty.
Section 481 (1) ACJA provides thus; subject to the preceding provisions of this part, the provisions of this Act relating to the inquiry into and trial of offences shall apply to a corporation as they apply to an adult. By virtue of this section, in present Nigeria, a company is treated as an adult for any offence they are tried without any exception. A corporation may be charged jointly and tried with an individual for any offence
Upon incorporation the corporation is identified by its incorporated name, in a criminal trial it suffices if such description or designation as is reasonably sufficient is applied, without necessarily stating its correct name or place of business or abode. This position was even made more explicit under the ACJA in section 190 where it went further to state that it shall not be necessary to state the person’s correct name or his residence, degree or occupation, so far as the person has been reasonably described to identify him. This circumstance will apply with equal force to the description or name of a company or corporation.
Perusing through the ACJA, CPC and Penal Code, it is crystal clear that there is no provision that the representative of the corporation may examine or cross-examine witnesses in his capacity as a representative. Consequently, where the corporation appoints someone who is not a lawyer and does not have the right of audience, it may be prejudiced.
However, notwithstanding that the procedural laws did not make provision for the representative of the corporation to examine or cross- examine, section 36 (6) (b) of the 1999 constitution, empowers every person who is charged with a criminal offence to examine in person the witnesses called by the prosecution.
In most cases when prosecution knows that a corporate body has committed a crime jointly with some of its employees, and since in most cases, the corporation cannot be subjected to the same punishment as its workers, it would rather prefer not to charge such corporate body or charge it with a lesser offence or charge its officers alone because of the difficulty in subjecting such corporate body to certain punishments like jail term or death sentence.
This position is very unfair as it encourages individual criminal liability, instead of corporate liability thus enabling the corporation that benefited from the whole transaction to escape punishment. No wonder it was stated by Bierce C. A. that; “a corporation is an ingenious device for obtaining individual profit without individual responsibility.”