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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.
[43] Ochiba v. The State (2011) LPELR-SC.270/2010
[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”
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.
[43] Ochiba v. The State (2011) LPELR-SC.270/2010
[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”
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