The traditional framework governing criminal responsibility limits liability to occasions where the accused has perpetrated a given social harm in circumstances disclosing moral fault. Following this framework, the general model for criminal offense definitions is a statement of some prohibited conduct, normally but not exclusively an act,with or without some designated result and an accompanying mental element. This combination of elements is traditionally summed up by the Latin Maxim “actus non facit reum nisi mensit rea”. This Maxim is translated as “an act is not criminal in the absence of a guilty mind.”

It is not accidental that crimes are constituted this way. At the root of this equation and also the theories of punishment, lies an assumption about the human nature and the part they play in the world of events . Implicit in each theory is the assumption of free will and that social harms can be morally attributed to the choices people make. Thus for example, if we discovered next week that we were all sophisticated robots created by an alien specie for their amusement and whose every action was mapped out for us by our individual genetic computer program, punishment would lose any moral justification since we all lack the free will which connotes our intention and by extension our acts.

All crimes if nearly examined contain such two elements, the act followed by a mental element otherwise. For example in an offence in section 394 of the criminal code, the physical element is the Killing of an animal while the mental element is the intention to steal the skin or carcase. In English law the two terms which stands for the physical and mental elements of an offence are respectively actus reus (Latin for guilty act) and mens rea (Latin for guilty mind). Nigerian courts have borrowed and used this terms. Although neither of them is expressly mentioned in the criminal or penal code, there’s no harm in using the two terms provided that they are terms of convenience only , short hand for complex notions and that the distinction between them is at best a rough one. There are various judicial pronouncements that attest to the inclusion of these terms in the Nigerian criminal justice system. Thus in Kayode v F.R.N, the court held that to prove the commission of an offence against an accused person, the prosecution carried on it a burden to prove by credible evidence, that both the mens rea otherwise known as the mental element and actus reus otherwise known as the physical element, coexist.

Also in Liman v The state (2016) the court of Appeal held that ” it is also trite that criminal responsibility is presumed on the satisfactory proof of the two pillars of actus reus and mens rea, the doing of the act that constitutes the offence and the requisite mental capacity, and the duty is always on the prosecution to prove the commission of a crime by proving the act done and the requisite guilty mind of the accused, beyond reasonable doubt. This reasoning has also been confirmed in Njokwu v The state (2013).

The criminal trial in Nigeria being accusatorial in nature, the judge stands as an umpire between the prosecution and the accused, it is on the shoulders of the prosecution to prove his case against the accused beyond reasonable doubt. This is done by proving the two elements vis actus reus (that the accused has committed the act in question) and mens rea (and that he has the requisite intention), which follows the act. The court in Eze v The state affirmed the above by helding that, to establish criminal responsibility, there must be mens rea (criminal knowledge or intention to commit the offence) to support the actual reus which is the actual act. This same reasoning was taken in Aminu Tanko v The state and also Okewu v The state.

Thus in absence of proving the two elements by the prosecution the accused is deemed not guilty and therefore is entitled to be discharged. This was affirmed by the court in Ogunrombi v F.G.N, per justice Okoronkwo when he said:

” the offence charged has it’s elements or ingredients, a trial judge looks out for those elements or ingredients and not suppositions or colorations. If the elements are not found,the accused is entitled to be discharged, there’s not but about it”

Same reasoning was found in the court of appeal’s decision in Okebata v The state (2013) where the court held:

“It is trite that where there is a failure to establish one element of an offence, then there’s a failure to prove the case beyond reasonable doubt and therefore the accused person must be discharged”

To this it is the conclusion of the Nigeria’s criminal justice system that it must be proved that an act is being perpetrated by the offender so also he must intend such commission. Thus an act alone without intention is futile to prosecution, so also intention alone no matter wicked or dangerous it might be is not generally punished by the law unless and until the person with the intention begins to put it into execution. The main reason being that to control people’s state of mind alone is very difficult and complicated and so to try to set that as a standard will become too narrow a limit on individual freedom, also it is invariably difficult for punishment to deter such offender.

The following examples may prove instructive; take a deep breaths and understand the two scenarios;

EXAMPLE 1

Adam sees his deadly enemy Jamila walking towards a cliff, Jamila happens to be blind, Adam knowing Jamila to be blind does nothing to stop her, hoping that she will fall to her death, and she( Jamila) ultimately fell to her death. Here Adam is not guilty Of murder since the act requirement is not satisfied, although he has the requisite Intention of killing Jamila.

EXAMPLE 2

As in Example 1 but put differently say : Adam did not know Jamila to be blind but he however gave her false direction simply to irritate her and she eventually fell to her death, here Adam will not be punished for murder although the act requirement is satisfied (since his act caused her death), the requisite intention to commit murder is absent.

The requirement that these two elements (actus reus and mens rea) coincide serves a number of objectives:

1.It seeks to assure that the evil intention of the man branded criminal has been expressed in a manner signifying harm to the society

2.That there is no longer any substantial likelihood that he will be deterred by the threat of sanction.

3.That there has been any identifiable occurrence so as to avoid multiple prosecution.