SPECIFIC OFFENCES

Murder
Murder is the most grievous kind of homicide and is defined in Section 316 of Criminal
Code as follows:
A person who unlawfully kills another under any of the following circumstances can be
said to have committed murder.
(1) If the offender intends to cause the death of the person killed or that of some other
person;
(2) If the offender intends to do to the person killed or to some other person some
grievous harm;
(3) If death is caused by means of an act done in the execution of an unlawful
purpose, which act is of such nature as to be likely to endanger human life;
(4) If the offender intends to do grievous harm to some person for the purpose of
facilitating the commission of an offence or for the purpose of facilitating the
flight of an offender who has committed or attempted to commit any such offence;
(5) If death is caused by administering anything that will make somebody unable to
think or feel properly;
(6) If death is caused by unlawfully stopping the breath of any person for whatever
reason is guilty of murder.
Furthermore, murder is the killing of a human being by another human being. The early
Common Law regarded such as act (killing) as so serious that it was scarcely excusable.
Once a person has caused the death of a human being, he was (except in few cases) guilty
of a crime, even though he did not intend or forsee death as the result of his conduct.
With the development of mens rea, it became possible to differentiate between a lawful
and unlawful murder.
The Actus Reus in Murder
The actus reus of unlawful murder is causing the death of a human being in
circumstances which are not authorized, justified or excused by law. Section 306 of the
Criminal Code describes the killing of a person as unlawful. However, if an executioner
is authorized to execute a condemned criminal such killing is not unlawful provided it is
carried out in the manner prescribed by law.

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Self Defence
At Common Law, murder committed while acting in reasonable self defence of oneself is
excusable. A man attacked by an assailant can defend himself in whatever form. If during
the process of self defence, the attacker died, then it is not an unlawful death. But it is
presumed that he retreats as much as possible before he launched a counter attack. See
Section 286 of Criminal Code.
Furthermore, if a man assaults a person and the man believes that the assault can cause
reasonable apprehension of death and grievous bodily harm, and the person using force
believe on reasonable ground that his life is threatened, then it is lawful for him to use
such force against the assailant for defence even though such force may cause death or
grievous harm. See the case of The State v. Enabosi (1966) NMLR 241, see also R v.
Johnson (1964) Qd R.J.
Whenever self defence is pleaded on a charge of murder, it is necessary to show that the
nature of the attack by the deceased was such as to cause a reasonable apprehension of
death or grievous harm. But in considering whether the assault is such as to cause a
reasonable apprehension of death or grievous harm, the court must take into account the
nature of the weapon used and the disparity in strength between the assailant and the
defender. See the case of R v. Nwibo (1950) NLR 124. In that case the deceased carrying
a matchet pursued the accused. The accused disarmed him, felled him to the ground,
received no injury him self and then killed the deceased with the deceased own weapon.
Held: Accused had a good defence under Section 286 of Criminal Code. He reasonably
believed that the deceased intended to kill him…. If he could not kill the deceased he
would certainly be killed by the deceased. It is also important to take into account
evidence of previous enmities, threats and assaults for although the instant assault
standing alone may not be considered sufficient to cause a reasonable apprehension of
death or grievous harm, yet when considered in relation to previous enmities and assault,
it may do so.
Burden of Proof of Self Defence
Under the law and where self defence is relevant, it is the accused that will normally raise
the issue of self defence and it must be proved by the accused. However, if the accused
does not raise the issue of self defence and it appears from evidence that there was self
defence, then the prosecution should proof it. That is the burden of proof lies with the
prosecution.

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Death by Misadventure
Death caused by misadventure is excusable. This occurs where a person kills another in
purely accidental circumstances without intending to cause death or unlawful harm and
without gross negligence.
Lawful Arrest, Preventing Escape or Rescue after Arrest
A Police Officer wanting to arrest with or without warrant may face a situation where the
accused want to avoid arrest. The law allows the Police Officer to use force to prevent the
avoidance of arrest. If the offence committed is a felony punishable by death or 7 years or
more imprisonment and there is evidence to show that he may escape, the Police Officer
may kill the accused. If however it is an unlawful arrest, the person being arrested may
use force to secure his liberty and if death occurs during this process, the offence of
manslaughter can be charged. See R v. Adu (1954) 14 WACA 462.
Manslaughter
Any unlawful killing which does not amount to murder is manslaughter – See Section
317 of Criminal Code.
A person is guilty of manslaughter where he kills or is a party to the killing of another
with the fault required for murder but he acted:
(1) Under diminished responsibility
(2) Under provocation
(3) In pursuance of a suicide pact.
Punishment for Manslaughter:
A life sentence or death penalty is mandatory for murder but for manslaughter, the
maximum is life imprisonment and there is no minimum.
Manslaughter could be voluntary and involuntary.
(a) Voluntary manslaughter occurs when a person intentionally kills another but the
offence is reduced from murder to manslaughter because of provocation.
(b) Involuntary manslaughter covers all other cases in which there is no intention to
kill or do grievous harm, or which do not fall under Section 316 of Criminal Code.
For example where death is the result of unlawful conduct likely to cause harm but
not grievous harm or death and where death results from gross negligence in the
course of doing a lawful or an unlawful act.

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Voluntary Manslaughter
Provocation – Section 318 of Criminal Code provides that when a man kills another
person in the heat of passion/emotion caused by sudden provocation is guilty of
manslaughter not murder.
Provocation: Provocation according to Section 283 is defined as follow: The term
provocation used with reference to an offence of which an assault is an element include
except as herein after stated, any wrongful act or insult of such a nature which may likely
cause a person to lose self control and behave abnormally against person out of which
death may likely result. The following should be noted about provocation:
(a) A lawful act is not provocation to any person for an assault e.g. arresting a
criminal by Police.
(b) An act which a person does in consequence of excitement given by another person
in order to induce him to do the act, and thereby to furnish an excuse for
committing an assault, is not provocation to that other parties for an assault – This
is self induced provocation.
(c) An arrest which is unlawful is not necessarily provocation for an assault, but may
be an evidence of provocation to a person who knows of the illegality.
(d) It is a defence only to a charge of murder.
(e) If successful, it will not lead to an acquittal, the defendant will be convicted of
manslaughter.
Elements of Provocation
One thing that is important to note is that no amount of provocation can justify a killing.
Before a plea of provocation will succeed certain condition have to be satisfied.
The provocation must be such as to cause a reasonable person to loose his self control. If
a reasonable man would be provoked but the accused himself was not provoked, a plea of
provocation will fail. It must therefore be shown not only that the provocation was such
as could cause a reasonable man to loose his self control but also that the accused did in
fact lose his self control as a result of the provocation.
A reasonable person is a person with reason having a faculty of the mind by which he
distinguishes truth from falsehood, good from evil. A reasonable person is a fair, proper
and just and unbiased person. In R v. Adekunmi (1944) 17 NLR 269 Frances J. held that
in considering provocation, the effect it would be expected to have on a reasonable man,
must be taken to mean “the effect it would be expected to have on a reasonable man of
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accused standing in life, for it would be improper to examine the question in the light of
what would be sufficient provocation in the case of an educated and civilized person. He
concluded that the emotion of an illiterate or uncivilized person would be more readily
aroused than those of a civilized and enlightened class. See the case of Bedder v. DPP
(1954) 1 WLR 1119
In this case, the accused who was sexually impotent tried unsuccessfully to have sexual
intercourse with a prostitute. She jeered at him and kicked him causing him to lose self
control. He stabbed her twice and killed her. On a charge of murder, he pleaded
provocation and argued that the proper test was what would be the reaction of an
impotent reasonable man in the circumstances. The House of Lords upheld a direction
that the proper test was the effect which the conduct of the prostitute would have on an
ordinary person, not on a sexually impotent person.
Furthermore, it should be noted that if between the provocative act and the killing,
enough time has elapsed for passion to cool, a plea of provocation will fail. See the case
of R v. Green (1955) 15 W.A.C.A 75. The prisoner’s wife having left him went to stay
with her mother where she began to accept the advances of another man (Y). The
prisoner tried hard to win back his wife but failed. At about 9pm one evening, he visited
his mother-in-law and found his wife and another man (Y) having sexual intercourse. He
returned to his own house to brood over the misfortune. At about 1.00am he took a
matchet and returned to his mother-in-law’s house to kill Y if he was still there. He found
his mother-in-law snoring and heard wife and Y talking in a dark room. He struck his
wife with matchet and killed her. The mother-in-law was also killed. He was charged
with murder, the prisoner pleaded provocation but this was rejected because between the
provocation and the killing, enough time had elapsed for his passion to cool. Clearly if he
had killed the couple at 9pm when he first saw them, the plea would have been good.
Nature of Provocation
Provocation may be by word or deed.
The old Common Law rule was that words alone could not be sufficient provocation to
reduce murder to manslaughter. This rule was modified in Holmes v. DPP (1946) AC 588
where it was said that words alone could not amount to provocation except in
circumstances of a most extreme and exceptional character, and it was approved in R v.
Adekanmi. In Nigeria today it has been established that words alone can amount to
provocation sufficient to reduce murder to manslaughter.

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Involuntary Manslaughter
Involuntary manslaughter occurs where a person causes death under such circumstances
that he did not intend to kill and did not forsee death as a probable consequence of his
action, but there is some blame worthiness, such as gross negligence in his conduct. It
may also occur where death is the result of an unlawful act which involves the risk to
another person. Because it is an unintentional killing, it follows that there can be no
attempt or conspiracy to commit involuntary manslaughter.
Negligence
Negligence is the inadvertent taking of an unjustifiable risk while recklessness is the
conscious taking of as unjustifiable risk. If A is aware of the risk and decides to take it, he
is reckless, if he is unaware of the risk, but ought to have been aware of it, he is
negligent. Where A did consider whether or not there was a risk and concluded wrongly
and unreasonably that there was no risk or so small a risk that it would have been
justifiable to take it, he is negligent, recklessness was advertent risk taking. It simply
means paying attention to the risk before taking it. Negligence is not paying attention to
the risk before taking it.
When death results from negligence, the question is whether the accused is guilty of
manslaughter or not. This depends on the degree of negligence.
Simple lack of care is not negligence. The negligence must be above the ordinary tortious
negligence. The negligence that would amount to manslaughter could be associated with
recklessness.
Medical Negligence
Section 303 of Criminal Code provides that any person who, except in a case of necessity
undertakes a surgery or administer a medical treatment on a patient must be skillful,
reasonably or to use reasonable care in doing so. A doctor who negligently causes a
patient’s death is not guilty of manslaughter unless his negligence or incompetence is so
great as to show a disregard for life and safety and to amount to a crime against the State.
In order that negligence may result in manslaughter, it must be such criminal negligence
as it is required by English Law. When an unqualified or an unlicensed person undertakes
a surgical operation or other medical treatment, the law requires him to possess the
requisite skill and to use it. If he does not, he is guilty of criminal negligence. However, if
the person is not licensed but possess the required skill and competence to do the job, and
did it skillfully, he is not guilty of manslaughter simply because he is an unlicensed
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practitioner – See R v. Oshinmi (1956) WNLR 52; See also the case of R v. Akerele
(1941) 7 WACA 56. In that case i.e. R v. Akerele a qualified medical practitioner caused
the death of a number of persons by administering to them too strong a dose of Sobota. It
was argued that under Section 303 only a lack of reasonable care was required to make
the killing manslaughter. This was rejected by the court. Death resulting from mere
negligence may be an accident for which there is no criminal liability because it is
excused under Section 306.
For negligence to result to manslaughter, it must be such criminal negligence as required
by English Law.
Motor Vehicles
Determination of whether a driver who is negligent in killing a person can be charged for
manslaughter or not is explained in R v. Kojo (1958) LLR 69. In that case, the driver of a
car which had defective steering and useless brakes was held guilty of manslaughter
when without any apparent reason his car mounted a pavement and killed a child because
his conduct in driving the car in the condition in which the car was showed a reckless
disregard for the life and safety of others. It has also been held to be criminal negligence
of the highest degree for a person to drive a car without any brakes and with defective
steering equipment at 30mph on a busy road like Warri Sapele – R v. Edewoh (1956)
WNLR 152.
For a person to be charged for manslaughter, his conduct must show gross negligence and
a complete disregard for the lives and safety of passengers. See R v. Ajami (1955) WNLR
45.
Similarly, Section 18(1) of the Road Traffic Act makes it an offence for any person to
drive a motor vehicle on a highway recklessly or negligently or in a manner dangerous to
the public, having regard to all the circumstances of the case.
Recklessness occurs for example when a man blinds the driver of oncoming vehicle with
powerful headlight. This appears that the driver has no regard for other road users.
Recklessness is when you intentionally do an act that is capable of exposing another
person to danger.
Similarly in R v. Ajani (1955) WNLR 45 where a taxi driver entered a main road with an
excellent view in both sides and collided with a lorry properly driven on the road at a
time when he had been signaled to stop and had in fact stopped for a moment, he was
convicted of manslaughter of a passenger who died in the collision because his conduct

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showed gross negligence and a complete disregard for the lives and safety of his
passengers.
However, in R v. Tatimu (1952) 20 NLR 60, a driver with learner’s permit drove a lorry
and skidded which caused the death of a passenger. It was held that his conduct was not
an evidence of gross negligence.
Other Offences
(1) Aiding Suicide
Any person who procures or aids another to kill himself or counsels him to kill
himself and thereby induces him to do so is guilty of a felony punishable with life
imprisonment – See Section 326 of Criminal Code. An attempt to commit suicide
is a misdemeanour punishable with imprisonment for one year.
(2) Infanticide
This is willful killing of one’s child by the mother and the child is under 12
months old and at the time of the killing, her balance of mind was disturbed
because she had not recovered from the effects of childbirth. The woman is dealt
with as if she has committed murder. A woman who gave birth to a twin killed the
twin because of the customary believe that it is an abomination to give birth to
twin. She was convicted of murder in R v. Chima (1944) 10 WACA 223. On
appeal it was reduced to infanticide and not murder.
(3) Killing Unborn Child
A woman that kills or prevent a child from being born alive without any special
consideration for such is guilty of a felony that attracts life imprisonment.
However, if a pregnancy is needed to be terminated to save the mother’s life, it
may not be regarded as manslaughter.
(4) Concealment of Birth
Any person who when a woman is delivered of a child endeavours by any secret
disposition of the dead body of the child to conceal the birth, whether the child
died before, at or after its birth is guilty of a misdemeanour and is liable to
imprisonment for 2 years – See Section 329 of Criminal Code.
(5) Attempt to Procure Abortion
Any person who, with intent to procure miscarriage of a woman whether she is or
is not with child, unlawfully administers to her or causes her to take any poison or
other noxious things, or uses any force of any kind, or uses any other means
whatever is guilty of a felony and is liable to imprisonment for 14 years.
Any woman who with intent to procure her own miscarriage in the circumstances
described above is guilty of a felony and is liable to imprisonment for seven years.

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 It should be noted that at Common Law an abortion is unlawful if it is not done for
the purpose of preserving the life of the mother – R v. Bourne (1939) 1 KB 587.
(6) Attempt to Commit Murder
Any person who attempts unlawfully to kill another does any act, or omits to do
any act which it is his duty to do, such act or omission being of such a nature as to
be likely to endanger human life is guilty of a felony and is liable to imprisonment
for life – See Section 320 of Criminal Code.
If a person is charged with attempted murder, the prosecution must prove an
intention to kill and not merely an intention to do grievous bodily harm – R v.
Albert (1960) WRNLR 31 (FSC).
The above notwithstanding, if death result from grievous harm which is caused
intentionally, this is murder.
Parties to an Offence
In the Criminal Code, there are two distinct class parties. They are Principal Offenders
and Accessories