THE OFFENCE OF HOMICIDE IN NIGERIA
Introduction
Life is sacred and is considered so in all cultures
and civilizations. Hence in many jurisdictions, the willful termination of the
life of a human being by another human being is viewed as a grievous offence. The
common law at its early stage viewed such a killing as so serious that it was
hardly excusable. Except in a few cases, the very fact of causing the death of
a human being is already an imputable crime even where one did not intend or
foresee death as the result of one’s conduct. It was only later that there came
to be a distinction between lawful and unlawful homicide. This seminar paper
discuses the offence of homicide in general, lawful homicide and unlawful
homicide in particular, briefly other offences related to homicide, the burden
of proof, and then looks at the judicial attitude to homicide in Nigeria.
Homicide
in General
Definition
Black’s Law Dictionary defines homicide as the killing
of one person by another and criminal homicide as the act of purposely,
knowingly, recklessly or negligently causing the death of another human being[1].
Coke C.J equally defined homicide as:
When a man of sound memory and age of discretion,
unlawfully killeth within any country of the realm any reasonable creature in rerun natura under the king’s peace,
with malice aforethought, either expressed by the party or implied by law, so as
the party wounded or hurt, etc. die of the wound or hurt, etc. within a year
and a day after the same[2].
Hence, homicide is the legal term of killing a man or
human being whether lawfully or unlawfully. It is with the development of mens rea doctrine that there came into
existence the distinction between lawful and unlawful homicide as well as
different degrees of liability for unlawful homicide[3].
What qualifies as a human being capable of being killed is provided for by section
307 of the Criminal Code[4]
as follows:
A child
becomes a person capable of being killed when it has completely proceeded in a
living state from the body of its mother, whether it has breathed or not, and
whether it has an independent circulation or not, and whether the navel-string
is severed or not.
Causation
of Death
The Criminal Code provides that any person who causes
the death of another, directly or indirectly, by any means whatever, is deemed
to have killed that person, except in the cases explicitly provided[5].
Hence, where John shoots Anthony and kills him, John has caused Anthony’s death
directly, but where John procures Cletus as an agent to kill Anthony for him,
he has caused Anthony’s death indirectly. However, a person is not deemed to
have killed another, if the death of that other person does not take place
within a year and a day of the cause of death, inclusive of the day on which
the last unlawful act contributing to the cause of death was done[6].
In the English case of R. v. Dyson[7],
the accused who inflicted injuries upon the deceased more than a year and a day
before the date of death, as well as further injuries within that period that
accelerated the death, was charged and convicted of manslaughter, but had his
conviction quashed on appeal for misdirection, because the trial judge directed
the jury that they might find the accused guilty even if they thought that
death resulted solely from the earlier injuries.
A person is equally deemed to have killed another if
by threats or intimidation or by deceit he causes that other person to do an
act or make an omission which results in his death[8].
For instance, where Tony pointing a loaded gun at Ginus orders Ginus to jump
out of the window and he so does breaking his neck and resulting in his death,
Tony is deemed to have caused the death of Ginus by threat. However, where Tony
merely threatens or intimidates Ginus without requiring him to do any
particular act or omission which result in his death, such as informing him on
telephone that he sent four gunmen to kill him and Ginus drinks deadly posing
to avoid death by them, some authors argue that such an action or omission by
the Ginus must be a reasonably foreseeable consequence of the threat or
intimidation offered by Tony before he can be held to have caused Ginus’ death[9].
Hence in the case of R. v. Nwaoke,[10]
where the accused was found guilty by a trial judge for pointing a juju called
“Onye Uku” at the deceased telling her that the juju will kill her since she
refused to pay him his money, and the deceased later hanged herself on a tree
after six days out of depression, the conviction was quashed by the West
African court of Appeal.
With regard to causing death before or during the
birth of a child, the Criminal Code provides that if a child dies in
consequence of an act done or omitted to be done by another person before or
during its birth, the person who did or omitted to do such an act is deemed to
have killed the child[11].
However, death resulting from wounds, treatments, etc.
may give rise to complex problems in cases where, for instance, the accused
inflicted a wound on the deceased but some external factor for which the
accused is not responsible supervenes or occurs to cause death. For example, in
a situation where the wound inflicted by the accused is a contributory cause in
the sense that it operated jointly with the other factor to cause death, the
accused will be liable for causing the death of the deceased. Hence, where a
thief is pursued and caught in a public place and five hefty men in the crowd
beat him to death, the wound inflicted by each of the five hefty men
contributed to the thief’s death, and so each of them may be charged with
causing the death of the thief.
Similarly,
where one inflicts a grievous wound on another and subsequently other causes
occur to aggravate the wound and cause death, the one who inflicted the initial
wound will be liable for the death that resulted provided the grievous wound
initially inflicted by him is a contributory cause of death. This is evident
from the dictum of Parker C.J in R. v.
Smith[12]
that “if at the time of death the original wound is still an operating cause
and a substantial cause, then the death can properly be said to be the result
of the wound, albeit that some other cause of death is also operating[13]”.
In other words, once the victim’s death is traceable
to the injury inflicted by the accused, it will not lie in his mouth to say
that the deceased might have avoided the injury by proper precaution or that
his death from the injury might have been prevented by proper care or treatment[14].
In R. v. Blaue[15]
where the appellant inflicted four stab wounds on the deceased one of which
pierced her lung, and she refused on a religious ground a blood transfusion to
save her life, being a Jehovah’s witness, and subsequently died the next day as
a result of bleeding into the pleural cavity arising from the lung injury, his
conviction for manslaughter was upheld by the Court of Appeal (Criminal
Division) rejecting his argument that the deceased refusal to have blood
transfusion was unreasonable and had broken the chain of causation.
Again, one whose conduct accelerates the death of
another person, who at the time of such conduct is laboring under some disorder
or disease arising from another cause, is deemed to have killed that other
person[16].
Hence, where Olivia administers poison to Augustine who becomes ill and would
have died in two hours’ time but before the two hours expire, Joseph cuts off
Augustine’s head, it would be Joseph and not Olivia who is responsible for
causing Augustine’s death.
However, a person who inflicts a grievous wound on
another person is not liable for the subsequent death of that other person
where such death results neither from the wound nor from medical treatment but
the cause of death is only accidentally or remotely connected with the wound.
Hence if John shoots Peter and he was rushed to the hospital for an operation
and while Peter was waiting in the hospital for the operation, fire breaks out
and Peter is burnt to death in the fire, John would not be responsible for
causing his death because the fire did not result from anything done by John
and it was a mere coincidence that the fire occurred when did.
LAWFUL
HOMICIDE
A lawful homicide is a killing that is authorized or
justified or excused by law[17].
As a result, it is not every killing of a human being that is considered to be
unlawful. It is only when homicide occurs under such circumstances as the law
seeks to prevent that it is said to be unlawful.
In effect, homicide is considered lawful in the
following circumstances namely, Execution of sentence, self-defence, defence of
property, death by misadventure, death arising from lawful arrest or while preventing
escape or during rescue after arrest, death caused during a suppression of
riot.
Death
resulting from Execution of sentence
It is lawful for a person who is charged by law with
the duty of executing or giving effect to the lawful sentence of a court to
execute or give effect to that sentence[18].
Hence, an executioner is authorized to execute a condemned criminal and such
killing is considered lawful once it is carried out in the manner prescribed by
law. In other words, it is lawful and constitutional for one to be killed where
one is found guilty in Nigeria in respect of a criminal offence and a sentence
of execution has been passed on him by a competent court[19].
Death
resulting from Self-defence against unprovoked Assault
Where death results from an unlawful and an unprovoked
assault which caused a reasonable apprehension of death or grievous harm to a
person who was induced to believe on reasonable grounds that it is necessary
for his preservation from death or grievous harm to use force in self-defence,
the death caused is considered lawful[20].
The killing will not be lawful where the accused first began the assault with
intent to kill or do grievous harm to the deceased or where he endeavoured to
kill or do grievous harm to the deceased before the necessity of preserving
himself arose. It can only be lawful if before such a necessity arose, the
accused declined further conflict and quitted it or retreated from it as far as
was practicable. Homicide is equally excusable where a person while acting in
reasonable self-defence accidentally or mistakenly kills a person other than
the assailant[21].
Death
caused in defence of Property
Death caused by one who is the peaceable possessor of
a dwelling-house and anybody lawfully assisting him or acting in his authority,
in order to prevent the forcible breaking and entering of the dwelling-house by
any person whom he reasonably believes to be attempting to break and enter the
dwelling-house with intent to commit a felony or misdemeanor therein, is
excusable[22].
Death
caused by misadventure
Death caused by a person in purely accidental
circumstances without intending to cause death and without gross negligence is
excusable[23]. Therefore,
when anyone does an act and he is prosecuted for an event of that act which is
death, the only question for consideration is whether the event did occur in
fact by accident[24],
which if so renders the homicide excusable as death caused by misadventure. In Iromantu
v. State[25], where the deceased gripped the
appellants gun and in an attempt to recover it from him, the appellant
accidentally touched the trigger and the gun went off and killed the deceased,
it was held that the event of death occurred by accident as there was no
evidence of voluntariness or recklessness.
Death
resulting from lawful arrest or while preventing escape or rescue after arrest
Death caused by a peace officer or police officer
while lawfully preventing the escape of a person sought to be arrested whose
offence may be punished with death or with imprisonment for seven years or
more, is lawful if he cannot by any means otherwise be arrested[26].
Hence, the use of force which results in death is lawful provided the conduct
of the accused is reasonable and necessary under the circumstances permitted by
law as in lawful arrest, preventing escape or the rescue of the person arrested[27].
Killing
of Thieves
Where a private person authorized to arrest a thief
does so and the thief seeks to escape, it will be lawful for him to kill the
thief provided he believes on reasonable grounds that his conduct is necessary
in order to prevent the escape and the offence is such that the offender may be
arrested without warrant. Hence, where the thief uses force to resist arrest,
it may be lawful to kill him provided the conduct is reasonable under the
circumstances[28].
Death
caused during suppression of riot
Death caused in order to suppress a riot is lawful
provided the danger to be apprehended from the continuance of the riot warrants
such killing[29].
UNLAWFUL
HOMICIDE
While lawful homicide is a killing authorized,
justified or excused by law, unlawful homicide is a killing that occurs under
the circumstances which the law seeks to prevent, and these circumstances may
be murder, manslaughter, suicide or infanticide.
Murder
The offence of murder is considered to be the most
grievous kind of homicide, and it is defined as death caused unlawfully in any
of the following circumstances outlined by Section 316 of the Criminal Code: (a)
Where the offender intends to cause death of the person killed, or that of some
other person; (b) Where the offender intends to do the person killed or to some
other person some grievous harm; (c) Where death is caused by means of an act
done in the prosecution of an unlawful purpose, which act is of such nature as
to be likely to endanger human life; (d) Where the offender intends to do
grievous harm to some person for the purpose of facilitating the commission of
an offence which is such that the offender may be arrested without warrant, or
for the purpose of facilitating the flight of the offender who has committed or
attempted to commit such offence; (e) Where death is caused by administering
any stupefying or over-powering things for either of the purpose of
facilitating the commission of an offence or for the purpose of facilitating
the flight of an offender who committed or attempted to commit such offence;
(f) Where death is caused by willfully stopping the breath of any person for
the purpose of facilitating the commission of an offence or for the purpose of
facilitating the flight of the offender who has committed or attempted to
commit any such offence.
Whenever an offender intends to do to the person
killed or to some other person some grievous harm, it is immaterial that the
offender did not intend to hurt the particular person who is killed, for the
killing amounts to murder all the same. Also where death is caused by means of
an act done in the prosecution of an unlawful purpose and which is of such
nature as to be likely to endanger human life, it is immaterial that the
offender did not intend to hurt any person. In the same way, once death is
caused by an offender who intends to do grievous harm, by an offender
administering any stupefying or over-powering things or by willfully stopping
the breath of any person, all for the purpose of facilitating the commission of
an offence or for the purpose of facilitating the flight of the offender who
has committed or attempted to commit such offence, then it is immaterial that
the offender did not intend to cause death or did not know that death was
likely to result. The offence of murder is complete and the offender guilty.
For the offence of murder therefore, the intent to
kill or cause grievous harm is sufficient to ground conviction. Hence in the
English case of Hyam v. D.P.P[30],
where the accused jilted by her lover, out of jealousy set her new lover’s
house on fire burning her two children to death, and pleading that her only
intention was to frighten her out of the neighbourhood, it was held that an
intention to cause death or grievous bodily harm is established if it is proved
that the accused deliberately and intentionally did an act knowing that it was
probable that it would result in the death of or grievous bodily harm to the
victim, even though he did not desire the result.
Manslaughter
Manslaughter is defined as any unlawful killing which
does not amount to murder[31],
and is usually classified as either voluntary or involuntary. Manslaughter is
said to be voluntary when a person intentionally kills another but the offence
is reduced to manslaughter because of provocation. For provocation to reduce
murder to manslaughter, it must be such as to cause a reasonable person to lose
his self control, and that the accused did in fact lose his self-control;
again, the act which causes death must be done in the heat of passion caused by
sudden provocation and before there is time for passion to cool[32].
Provocation founded on witchcraft does not qualify to reduce murder to
manslaughter. This defence was rejected by the Supreme Court in the case of Edoho v. The State[33].
On the other hand, involuntary manslaughter covers all other cases in which
there is no intention to kill or do grievous harm, or where death is caused as
a result of unlawful conduct likely to cause harm but not grievous harm or
death, and where death results from gross negligence in the cause of doing a
lawful or unlawful act[34].In
other words, involuntary manslaughter occurs where death is caused under such
circumstances that the accused did not intend to kill and did not foresee death
as a probable consequence of his conduct but there is at the same time some
blameworthiness in his conduct, or where death is the result of an unlawful act
that involves the risk of harm to another.
Negligence by members of the medical profession is an important
aspect of manslaughter by negligence, for the law imposes a duty upon any
person who, except in a case of necessity, undertakes to administer surgical or
medical treatment to any other person, to have reasonable skill and to use
reasonable care in doing so[35].
Hence, a medical doctor who causes the death of a patient due to gross
negligence and incompetence amounting to a disregard for life and safety will
be guilty of manslaughter.
Similar to criminal negligence by members of the
medical profession is that of drivers of motor vehicles. Hence, the driver of a
car who caused death of a child when his car without any apparent reason
mounted a pavement while driving with a defective steering and useless brakes
was held to be guilty of manslaughter for he showed a reckless disregard for
life and safety of others[36].
It was thus held to be a criminal negligence of the highest degree for a person
to drive a car without any brakes, and with defective steering equipment[37].
Other
Offences related to unlawful homicide
Aiding
Suicide
It is unlawful and a punishable offence for one to aid
another person to kill himself. Hence, the Criminal Code provides that any
person who procures another to kill himself, or counsels another to kill
himself and thereby induces him to do so, or aids another in killing himself,
is guilty of a felony and is liable to imprisonment for life[38].
It is equally a misdemeanor punishable with imprisonment for one year for any
person to attempt to commit suicide[39].
Infanticide
A woman who willfully kills her child who is under
twelve months old, and at the time of the killing, her balance of mind was
disturbed because she had not fully recovered from the effect of childbirth or
because of the effect of lactation following the birth of the child is guilty
of the felony of infanticide, and the woman is dealt with as if she has
committed manslaughter[40].
Killing
of an unborn child
It is unlawful and an offence for any person to kill
an unborn child. Hence the Criminal Code provides that any person, who when a
woman about to be delivered of a child, prevents the child from being born
alive by any act or omission of such nature that, if the child had been born
alive and had then died, he would be deemed t have unlawfully killed the child
and is guilty of a felony and is liable to imprisonment for life[41].
THE
BURDEN OF PROVING THE CAUSE OF DEATH
The onus is always on the prosecution to prove that
the accused person caused the death of the deceased, and it is not considered a
sufficient evidence to show that the accused did an act or made an omission
which could have caused the death. Hence, in the case of R. v. Oledima[42],
where the accused administered an injection to the deceased who later died as a
result of an infection, the court held that because it was not shown how the
infection was caused, the cause of death equally was not proved, as the death
could have been caused by the injection or by germs on the body of the
deceased.
By virtue of section 221 of the Penal Code, the
ingredients of the offence of culpable homicide punishable with death are: (a) That the deceased had died;
(b) That the death of the deceased was caused by the accused; and (c) That the
act or omission of the accused which caused the death of the deceased was
intentional with knowledge that death or grievous bodily harm was its probable
consequence. The proof of these is proof beyond reasonable doubt, which does
not mean proof beyond the shadow of doubt[43].
However, on a charge of murder, the fact that the
corpse is not found is immaterial because death is a fact which can be proved
by circumstantial evidence. Hence, in the case of Jua v. The State[44],
where the deceased body was not found, the court held that it may still convict
an accused person of murder even though the deceased’s body cannot be found,
provided there is sufficient compelling circumstantial evidence to lead to the
inference that the man had been killed. In the instant case, the circumstantial
evidence of death as born out of the records was enough for the conviction of
the appellant, for it was the appellant who led the police to the scene of the
crime where the cloth the deceased wore on the fateful day was recovered,
together with four human teeth and strands of human hair, and the appellant did
not assert or prove that the deceased was alive.
In other words, it is not compulsory that there must
be corpus delicti before an accused
can be convicted, for where there is strong circumstantial evidence and where
the prosecution succeeded in fixing the accused as the killer of the deceased,
the only thing to consider is whether there is positive evidence that the
victim is dead[45].
The Judicial Trend of Nigerian
Courts in Homicide Cases
The crux of this part of the seminar is to examine the
judicial position of Nigeria courts in reaching decisions on homicide cases and
the interpretation of the statutory provisions by both the Criminal code and
the Penal code[46].
In the case of State
v. Usman[47], the provisions
of sections 221 and 222 of the penal Code were considered. In the instant case,
the accused was charged under section 221 (a) of the penal Code for the offence
of culpable homicide punishable with death for killing his wife, Aminatu
Babawuro. The PW1, one Abubakar Bakari who was the houseboy of the accused
testified that one Saturday night in the month of May 1970, he heard the
deceased wife crying. When he was later invited by the accused into the parlor,
he saw the lifeless body of the deceased lying in a pool of blood. The accused
then asked him to carry the corpse into a grave already dug by the accused and
warned him not to tell anybody that he killed his wife. A post mortem
examination of the body of the deceased by PW6, a medical doctor showed that
death was caused by severe loss of blood as a result of injury on the neck
which might have been caused by a sharp object. The accused denied the charge
of killing his wife but said nothing about the testimonies of PW1 and PW6.
The trial Court in its judgment found the accused
guilty of the offence of culpable homicide not punishable with death under
section 220 (b) of the penal code but punishable under section 224 of the penal
code, and so sentence him to 11 years imprisonment. The trial court found
however that the accused did not come under any of the exceptions in section
222 of the penal code dealing with culpable homicide not punishable with death.
It pointed out that the prosecution could not prove that the accused had the
requisite mens rea for he failed to
prove that the accused knew that his activities would cause the death of the
deceased, and again that PW1’s evidence was not enough to prove that the
accused actually dug a grave in his compound preparatory to killing his wife.
Dissatisfied with the judgment of the trial court, the
prosecution appealed to the Court of Appeal contending that it proved beyond
reasonable doubt the guilt of the accused as charged. The accused equally
cross-appealed. Unanimously allowing the appeal and dismissing the
cross-appeal, the Court of Appeal held that the evidence of PW1 and PW6
established adequately that the accused actually intended the killing of the
deceased, and that the accused did not come under any of the exceptions under
section 222 of the penal code to make the trial court return a verdict of guilt
for culpable homicide not punishable with death instead of culpable homicide
punishable with death as charged.
It is submitted that the Court of Appeal was right in
allowing the appeal for the intention of the accused was made manifest by his
cutting the neck of the deceased with a sharp object.
A pertinent question that often arises is with regard
to the judicial attitude of the courts in relation to the criminal
responsibility of an accused person under the age of minority in homicide
cases.
By virtue section 30 of the Criminal Code of Eastern
Nigeria, a person under the age of 7 years is not criminally responsible for an
act or omission, so also a person under 12 years, unless it is proved that at
the time of doing the act or making the omission, he had the capacity to know
that he ought not to do the act or make the omission. By virtue of section 319
of the criminal code of Eastern Nigeria, any person who commits the offence of
murder shall be sentenced to death. However, where the offender who in the
opinion of the court has not attained the age of 17 years has been found guilty
for murder, such offender shall not be sentenced to death but shall be ordered
to be detained during the Governor’s pleasure.
Under sections 368 (3) of the Criminal Procedure Act
and section 270 of Criminal Procedure Code, where a person below the age of 17
years is convicted of a capital offence, he shall not be sentenced to death, in
lieu he shall be detained during the pleasure of the Governor. Consequently,
the Supreme Court in Modupe v. The State[48]
held that under section 368 (3), if at the time the offence was committed, an
accused charged with capital offence has not attained the age of 17 years it
will be wrong for any court non only to sentence him to death but also even to
pronounce or record such sentence.
However, while in Lagos State and the States of Eastern
Nigeria, the relevant age is at the time of commission of the offence, in the
West and Northern Nigeria the relevant age is at the time of conviction[49].
HOMICIDE
IN OTHER JURISDICTIONS
England
and Wales
The law governing homicide in England and Wales is
regulated by the Homicide Act of 1957. Two general homicide offences – murder
and manslaughter- cover the ways in which someone might be at fault in killing.
There are also a number of specific homicide offences such as infanticide and
causing death by dangerous driving.
Murder which carries a mandatory sentence is committed
when someone unlawfully kills another person with the intention either to kill
or to do serious harm. Manslaughter on the other hand can be committed in one
of four ways: 1) killing by conduct that one knew involved a risk of killing or
causing serious harm (reckless manslaughter); 2) killing by conduct that was
grossly negligent given the risk of killing (gross negligence
manslaughter); 3) killing by conduct
taking the form of an unlawful act involving a danger of some harm to the
person (unlawful act manslaughter); or 4) killing with the intent for murder
but where a partial defence applies, namely provocation, diminished
responsibility or killing pursuant to a suicide pact.
In July 2005, the government announced a review of the
law of murder in England and Wales with the following terms of reference: (a)
To review the various elements of murder, including the defences and partial
defences to it, and the relationship between the law of murder and the law
relating to homicide (in particular manslaughter).
It is submitted that the law on homicide in England
and Wales is similar to that in Nigeria with the main difference that while the
punishment for murder in Nigeria is death by hanging, the sentence for murder
in England and Wales is mandatory life sentence[50].
Canada
The Criminal Code of Canada defined murder as culpable
homicide with specific intentions, while culpable homicide is defined as the
causing of the death of a human being either by means of an unlawful act, by
criminal negligence, by causing that human being, by threats or fear of
violence or by deception, to do anything that causes his death; or by willfully
frightening that human being, in the case of a child or sick person[51].
Manslaughter
is defined as any culpable homicide which is not murder or infanticide,
while infanticide is the killing of a newly-born child by its mother where the
mother's mind was disturbed as a result of giving birth or of consequent
lactation.
Murder
in Canada which is classified as either first or second degree occurs when:
- The person who causes the death of a human being
means to cause his death, or means to cause him bodily harm that he knows
is likely to cause his death and is reckless whether death ensues or not;
- A person meant to cause the death of a human
being or cause him bodily harm that he knows is likely to cause his death,
and by accident or mistake causes death to another human being,
notwithstanding that he does not mean to cause death or bodily harm to
that person; or
- A person, for an unlawful objective, does
anything he knows is likely to cause death, and thereby causes death to a
human being, notwithstanding that he desires to effect his objective
without causing death or bodily harm to any human being[52].
For
multiple murder offences committed after December 2, 2011, in Canada, a court
may, after considering any jury recommendation, impose consecutive periods of
parole ineligibility for each murder. While the provision is not mandatory,
this means, for example, that an individual convicted of three counts of first
degree murder could face life with no parole for 75 years - or 25 years for
each conviction.
For
offences committed prior to December 2, 2011, someone guilty of a single murder
could have his/her non-parole period reduced to no less than 15 years under the
Faint hope clause. However, this provision is not
available for offences committed after that date.
The
maximum penalty for manslaughter is imprisonment for life. However, a mandatory
minimum penalty (ranging from 4 to 7 years depending on the circumstances) only
applies when the offence is committed with a firearm. Nevertheless, there is also
a provision under which a person convicted of any "personal injury
offence" meeting the statutory criteria may be declared a "dangerous offender". A dangerous offender is
sentenced for an indeterminate period of imprisonment and is eligible for
parole after serving a minimum of 7 years. An offender convicted of 1st or 2nd
degree murder is ineligible to be declared a dangerous offender (since a
mandatory life sentence already applies). However, an offender convicted of
manslaughter can be declared a dangerous offender.
A
youth (12 years old or older) who is not
sentenced as an adult does not face a life sentence. Instead, if convicted of
first degree murder, they must serve a maximum sentence of 10 years, with a
maximum of 6 of those years spent in custody. If convicted of second degree
murder, they must serve a maximum of 7 years, with a maximum of 4 of those
years spent in custody[53].
Recommendation and Conclusion
In
many civilized countries of the world, though murder is still considered to be
a heinous form of homicide, it no more carries the capital punishment of death.
In the England and Wales, the punishment for murder is a mandatory life
imprisonment. Nigeria borrowed her criminal law on homicide from Britain and
they have since made many amendments to the law on homicide.
It
is recommended that Nigeria should equally amend her laws on homicide with
regard to the punishment imposed on conviction for the offence of murder. There
is need to seek for a more viable alternative sentencing to the crime of
homicide, other than death sentence. Life imprisonment for the offence of
murder in Nigeria is more appropriate and in line with the current trend in the
more civilized world. Capital punishment as championed by human right
institutions is fast becoming obsolete and has proven not to be an effective
antidote to halt the crime of homicide in the society.
[1] Brayan A. Garner, Black’s
Law Dictionary, 8th ed., West
Publishing co., St. Paul Minesota, 2004, p.751
[2] Card, Cross and Jones, Criminal Law, 13th Edition, Butterworths, p.205
[3] Kenny, Outlines
of Criminal Law, 19th Edition, Turner JWC, Cambridge, para. 93
[4] Cap C38, Laws
of the Federation of Nigeria (LFN) 2004
[5] Section 308
[6] Section 341
[7] (1908) 2 K.B. 454
[8] Section 310
[9] See C.O. Okonkwo, Criminal Law in Nigeria, 2nd Edition, Spectrum Books
Ltd, Ibadan, 2005, p.212
[10] (1939) 5 W.A.C.A. 121. “There is no evidence
whatever that the invoking of this juju, to the knowledge of the accused at the
time he invoked it, would be reasonably likely to cause the deceased to take
her own life…“.
[11] Section 309. This section is to be read in
conjunction with section 307 for a child becomes a person capable of being
killed only when it has completely proceeded from its mother’s body in a living
state.
[12] (1959) 2 All E.R. 193
[13] R. v. Smith (1959) 2 All E.R. 198; See also R.
v. Eguabor (No.2) (1962) 1 All N.L.R. 541
[14] See section 312 of the Criminal Code.
[15] (1975) 3 All E.R. 446.
[16] Section 311 of the
Criminal Code
[17] Various sections of the Criminal Code contain
provisions, in addition to the defences in Chapter 5, under which a killing may
be held lawful.
[18] Section 254 of the Criminal Code.
[19] Section 33 (1) of the 1999 Constitution (As
Amended).
[20] See Section 286 of the Criminal Code
[21] Cf. The
State v. Enabosi (1966) N.M.L.R. 241.
[22] Section 288 of the Criminal Code. See also the
case of R. v. Ebi, (1936) 3 W.A.C.A.
36, where the accused who was charged of murder for using his brother’s gun to
fire at a crowd that after almost completely ruining his house came back to
further damage it, and killed someone, was acquitted on the ground that the killing
was justifiable in defence of his property against the felonious attempt to
destroy it.
[23] See Section 24 of the Criminal Code: “Subject
to the express provisions of this code relating to negligent acts and
omissions, a person is not criminally responsible… for an event which occurs by
accident”.
[24] C.O. Okonkwo, op.cit., pp.82-82. In Timbu
Kolian v. The Queen, the fact that the death resulted from an unlawful act
did not exclude the operation of Section 24 for the death was purely
accidental.
[25] (1964) 1 All N.L.R. 311.
[26] Section 271 of the Criminal Code.
[27] C.O. Okonkwo, Op.cit., p.227.
[28] See Section 261 of the Criminal Code; R. v. Nwokorafor (1944) 10 W.A.C.A. 221.
[29] See Sections 73, 276 -280 of the Criminal Code.
[30] (1974) 2 All E.L.R. 41.
[31] Section 317 of the Criminal Code: “Any person
who unlawfully kills another in such circumstances as not to constitute murder
is guilty of manslaughter“.
[32] For details on the elements of provocation and the
nature of provocation, see C.O. Okonkwo, Op.cit.,
pp. 241 – 252. Section 318 of the Criminal Code equally provides that if a
person kills another in the heat of passion cause by grave and sudden
provocation, and before there is time for his passion to cool, he is guilty not
of murder but of manslaughter. In R. v.
Green (1955)15 W.A.C.A. 73, where the accused who saw his estranged wife
with another man having sexual intercourse at 9.00pm in her mother’s house and
went home to return at 1.00am to kill the wife and on a charge of murder
pleaded provocation, had his plea rejected because between the provocation and
the killing enough time had elapsed for his passion to cool. See also Thuku (alias Nyaga) v. Republic (1965)
E.A. 496.
[33] (2010) 14 NWLR
(Pt. 1124) 481-698. In this case, the
appellant committed murder contrary to section 319 (1), 318, 27, 28 of the
Criminal Code by plunging a dagger into the chest of the deceased and was
arraigned before the High Court for the offence of murder. He alleged that he
was under the spell of witchcraft and ultimately insanity, when he attacked the
deceased and killed him. The trial court rejected his plea and convicted him of
murder. His appeal to the Court of Appeal
and the Supreme Court was dismissed on the ground that the issue of
witchcraft as a cause of the appellant’s mental derangement and incapacity,
without more, which in fact was not properly established, goes to no issue, as
witnesses considered him normal with no history of insanity in his family.
[34] C.O. Okonkwo, Op.cit., p.240.
[35] See Section 303 of the Criminal Code.
[36] R. v. Kojo (1958)L.L.R. 69.
[37] R. v. Edewoh (1956) W.N.L.R. 152.
[38] Section 326 of the Criminal Code.
[39] Section 327 of the Criminal Code.
[40] Section 327A of the criminal Code.
[41] Section 328 of the Criminal Code. This is
without prejudice to Section 297 where a surgical operation, that may affect
the life of the child can be performed on a pregnant mother to save her life.
[42] (1940) 6 W.A.C.A. 202.
[44] (2010) 4 N.W.L.R. (pt. 1184) 258. See also Godwin Igabele v. The State (2006) 6 N.W.L.R. (Pt. 975) 100; Babuga
v. The State (1996) 7 N.W.L.R. (pt. 460) 279.
[45] Ubani v. The
State (2003) 18 NWLR (Pt. 851) 224
[46] Sections 220, 221 and 222 of the Penal Code
and Sections 316, 317 and 320 of the Criminal Code generally govern cases of
unlawful homicide and attempted murder.
[47]
(2005) 5 NWLR (Pt. 906) 80 CA
[48] (1988) 4 NWLR (Pt. 87) 130.
[49] S.O. Ihmanobe, Lawyer’s
Deskbook, vol 1, Temple Legal consult, Abuja, 2010, p.425. Even in R. Bangaza, 5 FSC 1, while the court
held that the old section 368 of C.P.A meant that the relevant age was the age
at conviction, it remarked that it would be inequitable to apply the law as
such. See also Ekang v The State
(2001) 11 NWLR 1 at p.27.
[50] The Law Commission, “Murder, manslaughter and
Infanticide” in www.lc304_Murder_manslaughter_and_infanticide_Report.pdf;
Accessed 15/1/13.
[51] Criminal Code of Canada, s. 222 in http://en.wikipedia.org/wiki/Murder_%28Canadian_law%29;
Accessed 15/1/13.
[52] Criminal Code of Canada, s.229