The Offence of Compounding: A Guide; Not a Bar to Criminal Mediation

in Nigeria

Monwe Dabere1

Abstract

Mediation, as a means of voluntary settlement of legal rights, has become a mainstay in many
legal jurisdictions as an alternative to the resolution of disputes and the forgoing of any legal
suits by claimants. Its use has also transcended into the sphere of criminal jurisdiction with its
elements employed in healing the festering sores of crime - both physical and psychological -
on victims and even in the sentencing of offenders, if any, in some jurisdictions. Its application
in the Nigerian Judicature has however been marred by reticence due to reading of the offence
of Compounding as a bar to settlement of criminal matters without prosecution of offenders.
This paper analyses the offence of compounding with the view that it is not a bar but a guide
to be used in the mediation of crime with the aim to preserve society’s need for general
deterrence alongside an evolving positive legal phenomenon.

INTRODUCTION:

Mediation is defined as:

“A process in which the parties to a dispute, with the assistance of a dispute resolution
practitioner (the mediator), identify the disputed issues, develop options, consider alternatives
and endeavour to reach an agreement. The mediator has no advisory or determinative role in
regard to the content of the dispute or the outcome of its resolution, but may advise on or
determine the process of mediation whereby resolution is attempted.

Mediation may be undertaken voluntarily, under a court order or subject to an existing

contractual agreement.”2

The term “Criminal Mediation” here refers to restorative justice programs and the concept of
Plea Bargains. This is because the procedure undertaken by these programs adopts the
procedure and principles commonly found in civil mediation such as voluntariness of parties
to initiation of proceedings, confidentiality of proceedings and subsequent agreements,

1
LL.B (500 Level, University of Lagos at time of publishing), AICMC, CIArb (UK). Contact
Information: 08081834521; Dmonwe@yahoo.com; Monedabere@gmail.com
2
David Spencer & Michael Brogan, Mediation Law and Practice, (Cambridge University Press: England 2007)
p. 9 (quoting the definition of mediation by the National Alternative Dispute Resolution Advisory Council
(NADRAC), an independent advisor to the Australian Attorney General on non-judicial resolution).

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empowerment of parties to arriving at their own decisions, neutrality of a third party/mediator
presiding over the process, and the capacity to design unique solutions to disputes.3

LEGAL FRAMEWORK

In Nigeria, the laws that regulate the institution and conduct of criminal proceedings include
the: Police Act,4 Criminal Procedure Act,5 Criminal Procedure Code,6 Administration of
Criminal Justice Act,7 Criminal Code,8 Penal Code, and the 1999 Constitution.9 By virtue of
these enactments, persons who can institute criminal proceedings are:

1. The Attorney-General of the Federation or (within powers) of a State10

2. Judicial officers11
3. The police12
4. Private persons13
5. Special prosecutors14
These will be relevant in discussing who holds the power to compound offences and withdraw
from prosecution after a successful criminal mediation.

3
ibid. pp. 84 - 85 (stating the five philosophies of mediation: Confidentiality, Voluntariness, Empowerment,
Neutrality, Unique solution)
4
Police Act, 1943 Cap. P19 LFN 2004.
5
Criminal Procedure Act, 1990 Cap. C41 LFN 2004.
6
Criminal Procedure Code, 1960 Cap. C42 LFN 2004
7
Administration of Criminal Justice Act, 2015 Cap. A3 LFN 2004
8
Criminal Code 1990, Cap. C38 LFN 2004 (hereafter cited as Criminal Code 1990)
9
1999 Constitution of the Federal Republic of Nigeria, Cap 23 LFN 2004
10
ibid. ss. 174(1), 211(1); supra note 79 ss. 106, 107 (these empower the Attorney General to institute, takeover,
or discontinue criminal proceedings against any person in a court of law).
11
supra note 6, s. 160
12
supra note 4, s. 23; see also (Per Belgore JSC) FRN v Osahon (2006) 24 WRN (p. 47) lines 10
13
supra note 5, s. 342; supra note 6, s. 143; supra note 7, s. 88
14
Some statutes provide for specific persons or bodies to institute criminal proceedings e.g. s.13 Economic and
Financial Crimes Commission (EFCC) Act 2004

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CRIMINAL MEDIATION IN NIGERIA

Despite the prevalence of civil mediation statutes,15 programs,16 and institutions17 in Nigeria,
the mediation of criminal matters has not been pursued. From a first look, there seem to be bars
to the application of criminal mediation in the Nigerian criminal judicature. This part will
address a much profound bar which is the prohibition of the compounding of offences in the
Criminal Code 1990.

THE OFFENCE OF COMPOUNDING

The compounding of crimes is criminalized per sections 127 and 128 of the Criminal Code
1990.18

Section 127 provides for the Compounding of felonies.19 It states:

“any person who asks, receives, or obtains, or agrees, or attempts to receive or obtain any
property or benefit of any kind for himself or any other person upon any agreement or
understanding that he will compound or conceal a felony, or will abstain from,
discontinue, or delay in prosecution for a felony, or will withhold any evidence . . . is guilty of
an offence.”

Section 128 prohibits the compounding of penal actions, stating:

“any person who, having brought, or under pretence of bringing an action against another
person upon a penal Act, Law or Statute in order to obtain from him a penalty for any offence
committed or alleged to have been committed by him, compounds the action without the

15
The Arbitration and Conciliation Act, Cap. A18 LFN 2004, which is an adoption of the UNCITRAL Model law
on International Commercial Arbitration was enacted in 1988. In the Third Schedule of the Act, the Conciliation
rules are detailed with the rules applying to the settlement of disputes arising out of a contractual or other civil
relationship (Conciliation is held to be synonymous with Mediation).
Other laws exist which are more regional and refer to the operation of mediation in enacted states. These include
the Lagos State Multi-Door Court Law 2007, Lagos State Multi-Door Court Practice Directions on Mediation,
Citizens Mediation Centre Law 2007, Mediation and Arbitration Rules 2008 (Kano).
There is also endorsement of Alternative Dispute Resolution (ADR) techniques including Mediation by court
rules such as the High Court of Lagos State (Civil Procedure) Rules 2019. Order 5, Rule 8 of the Rules provides
for the screening of originating processes for suitability for ADR and possible referral; Order 25, Rule 3 provides
for withdrawal of civil suits by provision of written consent for both parties to the registrar; Order 27, Rule 1(2)
& Rule 2 provide for the discretion of the court to make referrals of a civil suit to ADR settlement during Case
Management Conferences, and enforce ADR orders.
16
An example can be seen in the Lagos Multi-door Courthouse Settlement Week.
17
These include state-run centres like Citizen Mediation Centres, Multi-Door Courthouses, and private
organisations which train civil mediators like the (ICMC) Institute of Chartered Mediators and Conciliators.
18
supra note 8
19
ibid. s. 3 (felonies are defined to be offences declared by law to be felonies, or punishable, without proof of
previous conviction, with death or with imprisonment for three years or more).

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 order or consent of the court in which the action is brought or is to be brought, is guilty of a
misdemeanour and liable to imprisonment for one year.”

Prima facie, these sections seem to criminalize any attempt at criminal mediation processes
like VOM, as it is common in such proceedings for the victim to receive a benefit in exchange
for non-prosecution of an offence. The mediator is also implicated by the terms, receiving or
obtaining “for any other person”, which would be the victim. It is also quite mundane for such
proceedings to be initiated before the institution of a penal action, or during the pendency of
one.20 Lastly, the confidentiality provisions of VOM proceedings stop the divulgement of likely
evidence stated during such proceeding, or evidence of parties to such proceeding gotten from
the process, from admissibility in any subsequent trial on the matter.

On the other hand, a reading of both sections can lead to the conclusion that only the following
are criminalized:

1. The compounding of an offence adjudged to be a felony, and

2. The compounding of other offences21 without the consent or order of a court of competent
jurisdiction.
The foregoing will lead to the premise that while felonies are prohibited from being
compounded in any way, simple offences and misdemeanours can be compounded, and
invariably mediated upon to that effect, provided that this is done under an order of a court of
competent jurisdiction, or consent of such court approving such settlement before or after the
process.

Notably, sections 127 and 128 do not prohibit criminal mediation after a conviction, or after
sentencing of an offender.

To buttress these points, a few state federal and state (Lagos) statutory provisions relating to
criminal procedure shall be analysed.

By law, a private person is empowered to lay a complaint against another on an alleged

commission of a crime.22 Section 355, Administration of Criminal Justice Act 201523 provides
that if a complainant, at any time before a final order is made in any case, satisfies the court

20
Jeremy Andersen, “Victim Offender Settlements, General Deterrence, and Social Welfare”
http://www.law.harvard.edu/programs/olin_center/ January, 2003 (last visited July 15, 2019)
21
supra note 8, s. 3 (apart from felonies, two other classification of offences exist: simple offences, and
misdemeanours).
22
supra note 13
23
supra note 7 (hereafter ACJA 2015)

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that there are sufficient grounds for permitting him to withdraw his complaint, the court may
permit him to do so, and summarily acquit the accused or discharge him. This provision allows
for a withdrawal of a person’s complaint during a trial, but before judgement is passed, on
“sufficient grounds” and the permission of the court. This can be construed to provide a leeway
for the compounding of the offence to be seen as “sufficient grounds”, with the permission of
the court acting as consent of the court to satisfy the provisions under section 128 of the
Criminal Code 1990.

Section 320, ACJA (2015) allows for a civil action to be maintained during the pendency of
criminal proceedings. This may occur where a crime also constitutes an actionable tort,24 or
where certain elements of it can be resolved in a civil action like seeking compensation or
restitution. It does not take much to see the possibility of such civil action being mediated upon
with parties reaching a resolution. And such resolution leading to withdrawal of the complaint
at the criminal court,25 or compensation or restitution inadvertently resting on the mind of the
judge during later criminal proceedings.26 Such successful mediation can be deemed to be
mediation of the criminal matter itself.

In Lagos state, s. 25 of the High Court Law 200327 gives more fodder to the reasoning that
there is a lack of a complete bar to criminal mediation. It states:

“In criminal cases, the High Court may encourage and facilitate the settlement in an
amicable way of proceedings for Common Assault or for any other offence not amounting
to a felony and not aggravated in degree,28 on terms of payment of compensation or other
terms approved by court”.

This section allows for settlement in criminal proceedings by way of compensation or other
terms approved by the court. It continues with the prohibition of the settlement of felonies with
the addition of crimes aggravated in degree.

Given the blurred lines as to the true state of the law on the settlement of crimes, it is quite
fortunate that the Supreme Court has cleared the air on the matter by creating a distinction,

24
The offence of stealing constitutes the same elements as the tort of conversion
25
supra note 7, s. 355
26
The court has the power to exercise its discretion in sentencing considering inter alia, “the objectives of
sentencing including the principles of reformation” (ACJA 2015, s. 416). The voluntary return of stolen items in
a case of theft can be seen as remorse and a step by the accused to acknowledgement of the impact of his crime
leading to possible lesser punishment where possible.
27
High Court Law Cap. H3, Laws of Lagos State
28
Emphasis provided by author

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albeit a confusing one at first, between “Compounding of a crime” and the “Compounding an
offence”. In the case of PML (Nig.) Ltd v FRN,29 the Supreme Court held30 that “Compounding
of a Crime” is a criminal act in which a person agrees not to report the occurrence of a crime
or not to prosecute a criminal offender in exchange for money or other consideration. That it
consists of the “receipt of some property or other consideration in return for an agreement not
to prosecute or inform on one who has committed a crime.” The Court held that the elements
which need be present to constitute a “Compounding of a Crime” are:

a) That there is an agreement not to prosecute,

b) There is knowledge of the actual commission of a crime,
c) There is receipt of some consideration.
As to the latter, the “Compounding of Offences” was explained as:

“An act on the part of the victim, who decides to pardon the offence committed by the
accused person, and requests the court to exonerate him. This does not mean that the offence
has not been committed; it only means that the victim is willing to pardon it, or has accepted
some form of compensation for what he or she has suffered. So the compounding of offences
terminates the legal proceedings against the offender and he is entitled to an acquittal.”

The decision seems to suggest that the “Compounding of offences” is legal, and that ss.127 &
128 of the Criminal Code 1990 though barring uninterested persons (non-victims) in a crime,
do not bar victims from compounding crimes committed against them, with the exception of
felonies. The decision also seems to suggest that legal proceedings must have been instituted
against the offender (a report to the police or other law enforcement agency will suffice), and
that the consent of the court must be gotten before the offender can be summarily acquitted.31

Despite the profound decision of the Supreme Court, the issue remained as to who had the right
to be seen as a complainant capable of compounding an offence. This was of importance as
criminal cases, when reported, are taken up by the state which prosecutes through its agents:
the police,32 or any other statutory body having discretion as to prosecution like the EFCC,33
or the attorney general of the federation or state.34

29
(2017) Law Pavilion Electronic Law Reports – 42380 (SC) pp 39 – 44, paras B –C; [2018] 7 NWLR (Pt. 1619)
448.
30
ibid., per Augie JSC
31
This aligns with s. 355 ACJA 2015 (supra note 25)
32
supra note 12
33
supra note 10
34
supra note 14

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This came up in the case of FRN v Ononye,35 where the complainant had reported the issue of
dishonoured cheques to him, to the EFCC, who took up prosecution of the case. During trial,
the counsel for the original complainant appeared in court to apply for a withdrawal and striking
out of the charge, consequent upon which the Court obliged. The appellant, the state, in this
case argued that the complainant had no locus standi to withdraw prosecution of the case as
the state was the one prosecuting crime. The Court of Appeal held per Ogunwumiju JCA that
the complainant was the one that brought the charge and it could only be proved by his
testimony. That what had happened was a compounding of the offence by the complainant, and
following compliance with section 355, ACJA 2015 (in pari materia with s. 191 of the
Administration of Criminal Justice Law of Anambra State) the court had permitted him to
withdraw his complaint and thereafter acquit the defendant. That the complainant is not a third
party to the case, but that the same will apply where the police take up a case from a complaint
laid to them.

The court however gave two exceptions to the compounding of an offence by the complainant:

1. Where the offence is committed against tax payers and the citizens of Nigeria, e.g.,
corruption cases. Here, no one individual can serve as a complainant as only the state can
complain about such charges, or discontinue by nolle prosequi.
2. Cases where public policy is of paramount interest. E.g., where life is lost, the state is the
complainant as it must protect the right of the person whose life was unlawfully taken away,
and who is not in a position to compound the offence as he/she is dead.
Conclusively one can say that the compounding of an offence by a victim of the crime can take
place during the following stages of prosecution:

1. Before a trial (after a report made to any law enforcement agency)

2. During the pendency of a trial.36
Also the following offences cannot be compounded by individuals:

1. A felony37
2. Any offence aggravated in degree38

35
(2018) Law Pavilion Electronic Law Report – 45067 (CA)
36
supra note 7, s. 355
37
supra note 19
38
supra note 28

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3. Any offence in which the state is seen as the primary complainant, e.g., murder, official
corruption cases.39

RELEVANCE TO CRIMINAL MEDIATION

In Criminal Mediation/Restorative Justice processes like Victim-Offender Mediation, the

compounding of a crime, that is the forgoing of criminal prosecution in lieu of compensation
is a normal occurrence. Therefore a misconstruction of the offence of compounding in the
Criminal Code 1990 can have adverse effects on its implementation, therefore such doubts as
to its opposition by the Criminal Code and other local statutes must be allayed. Following that,
it can be concluded from the above analysis that there are no provisions barring restorative
justice processes like VOM in Nigeria. However there are limitations.

Therefore the following offences cannot be mediated upon with a view to compounding them:
felonies, and offences aggravated in degree. They can however be mediated upon after an
acknowledgement of guilt by the offender with a view to healing the victim, and starting the
road to reformation for the offender. Consequently this can take place after the conviction of
the offender or after sentencing of the offender. This does not bar mediation during the
pendency of a trial or post-reportage, but that such proceeding must not be to compound the
offence.

As to simple offences and misdemeanours, they can be mediated upon with a view to
compound the offence by discontinuing legal proceedings. This can only be done after a report
has already being made, or a trial already ongoing, and must receive consent of the court either
to initiate mediation proceedings or to effect any resolution made in such proceedings, at which
the court will acquit the offender. Mediation can also occur at this stage not to compound the
offence but to settle it on such terms as the court may approve. Of course, mediation is readily
available for these offences post-conviction and post-sentencing, though this timeframe is more
common with offences which have caused greater loss like felonies, and other offences
aggravated in degree.

Therefore, Criminal Mediation is possible in Nigeria during the following stages of criminal
prosecution:

1. Post-reportage (Pre-trial)

39
supra note 35

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2. During trial
3. Post-conviction
4. Post-sentencing of the offender
Notably, where crime is to be summarily compounded with the offender escaping criminal
liability to the state, the courts have discretionary power to approve such settlements. This is
fortunate as it solves the problem of ensuring societal interests as to general deterrence40 from
crime.

40
Andersen supra note 20

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