THE APPLICATION OF VICARIOUS LIABILITY IN CRIMINAL LAW

Vicarious liability in law refers to a situation where one person is held legally responsible for the  actions of another. This concept is common in civil law (like in employer-employee relationships), but in criminal law, it is very limited and exceptional. In criminal law, the doctrine under which a person or entity (like a company or employer) can be held criminally liable for the criminal acts of another (typically an employee or agent), even though the person or entity held liable did not personally commit the crime applies only where a statute specifically provides for its application.

In the realm of criminal jurisprudence, the doctrine of vicarious liability remains a controversial and narrowly applied principle, largely incompatible with the foundational requirement of personal culpability. The Supreme Court of Nigeria, in the landmark case of ABUBAKAR V. INEC (2020) 12 NWLR (Pt. 1737) 37 SC, decisively reaffirmed this position. The case, though primarily an electoral dispute, raised a pivotal legal question as to whether a statutory body like INEC can be held criminally liable for the alleged misconduct/crime  of its ad hoc staff?

The Court’s response was emphatic and unambiguous to the effect that vicarious liability has no place in criminal law, except where expressly provided by statute. 

The fact of the case was that Alhaji Atiku Abubakar, the candidate of the Peoples Democratic Party (PDP), contested the outcome of the 2019 presidential election, which had declared President Muhammadu Buhari of the All Progressives Congress (APC) as the winner. Atiku and his party (PDP) alleged massive irregularities, including electronic result manipulation, and fraudulent acts allegedly perpetrated by officials and ad hoc staff of the Independent National Electoral Commission (INEC).A central claim was that INEC should be held liable for the alleged unlawful actions of its agents. The matter progressed through the Presidential Election Petition Tribunal and ultimately reached the Supreme Court. 

A central plank of the petitioner’s case was that INEC should be held accountable for the criminal acts allegedly committed by its staff or ad hoc officials during the election process. They argued that by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), there is no vicarious liability in the realm of criminal law, particularly in the area of fair hearing jurisprudence and criminal responsibility. Criminal liabilities are borne personally by culprits and/or other participes criminis. Since criminal liabilities operate on the individual on the basis of his mens rea, criminal responsibility is personal and not vicarious. Accordingly , a person (other than INEC staff or officials ) against whom allegations of criminal nature are made in an election petition must be given an opportunity to be heard and to defend himself. In the instant case, the appellants pleaded against some individuals and organizations, including the Police and Army, who were not made parties to the petition as respondents, allegations of corrupt practices and illegal interference with the conduct of the election. These were not INEC officials or staff. Accordingly, a person, other than INEC staff or officials, against whom allegations of criminal nature were made in the election petition should have been given an opportunity to be heard and to defend himself. 

Justice I. T., in concurring with his brother, emphasized that a statutory body cannot be criminally liable for unauthorized acts of its agent. Thus, It was held  that:

“There is no inimical liability in the realm of criminal law”, or words to that effect. The judgment affirms that vicarious criminal liability only applies where expressly provided by statute."

Also, it was held by PER EKO, Justice of the Supreme Court, that:

"The settled principle of law, particularly in the area of fair hearing jurisprudence and criminal responsibility, is that: there is no vicarious liability in the realm of criminal law. Criminal liabilities are borne personally by culprits and/or other participes criminis. Since criminal liabilities operate on the individual on the basis of his mens rea, criminal responsibility is personal and not vicarious."

See also, these cases, Buhari v. Obasanjo, Akpa v. The State,  Dina v. Daniel .. Accordingly, a person (other than INEC staff or officials) against whom allegations of criminal nature are made in an election petition must be given an opportunity to be heard and to defend himself: Section 36(1)  of the Constitution:, which provides as follows;

" In the determination of his civil rights and obligations, including any questions or determinations by or against any government or authority , a person shall be entitled to a fair hearing within a reasonable time by Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality."

See also, the case  of Ishola v. The State (1978) 9–10 SC 73, that clearly made a clear position of vicarious liability, the Court held that;

"In criminal law, there is no vicarious liability unless a statute specifically imposes such liability. Criminal responsibility is personal. Each person is only responsible for his own criminal act or omission."

Furthermore, see the cases of Yusuf v. Obasanjo (2005) 18 [NWLR (Pt. 956) 96.

There are some key principles of vicarious liability in criminal law, such as; limited application, no strict liability, actus reus and mens rea, exceptions in statutory offences and so on. While vicarious liability can be a basis for holding employers liable for the torts of their employees, its application in criminal law is limited and generally requires a specific statutory provision or a clear demonstration of mens rea on the part of the employer. 

CONCLUSION 

The Supreme Court’s ruling in Abubakar v. INEC (2020) serves as a decisive reaffirmation that vicarious liability has no place in criminal law, unless a statute explicitly provides for it. By drawing a sharp distinction between civil and criminal accountability, the Court protected the foundational criminal law principle that guilt must be personal.

In doing so, the Court shielded institutions like INEC from being automatically implicated in criminal allegations based on the acts of subordinates or agents, unless there is:  Direct evidence of complicity, or a clear statutory framework that imposes such responsibility.

While the ruling is consistent with legal orthodoxy, it also signals the challenges of establishing institutional accountability in public service, especially in electoral matters. Unless Nigerian criminal and electoral laws are amended to impose strict or statutory vicarious liability in defined circumstances, such liability remains inapplicable in criminal proceedings.

About the Author:

Aisha Abdullateef is a member of Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. She can be reached via +2348165796810.