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NIGERIAN CRIMINAL LAW?INTRODUCTION Under this heading, a conscious effort will be made to highlight the nature and /or unique features of our criminal law. Attention will be drawn to the fact that unlike English Criminal Law based on the common law of crime, the primary sources of Nigerian Criminal Laws are legislative enactments. This is because the general principles of our criminal law are to be found in(a) The Criminal Code Act (Laws of the Federation) 1958, which applies to the Southern States of Nigeria till date. The criminal code ceased to apply in the Northern States on September 30, 1960. The Penal Code (Northern Region) Federal Provisions Act, 1960 enunciates the general principles of criminal law in the Northern States.There also exists a host of other legislation regulating conducts and creating offences.As a preliminary, the students’ minds are directed to the definitions of crime, purpose of criminal law, theories of punishment which presumably they would have explored in their study of criminal law under the various jurisdictions wherein they studied. A chapter has also been devoted to the historical evolution of the Nigerian criminal law in a nutshell. Then there will be a chapter-by-chapter treatment of the principles of criminal law as embodied in the criminal and penal codes. Often times a critical approach would be adopted by way of comparing cases decided on provisions of the codes with like provisions in other jurisdictions and/or like principles of common law.?CHAPTER 1HISTORICAL EVOLUTION OF THE NIGERIAN CRIMINAL LAWThere had always been in existence before the advent of the British Colonialists, a vast number of criminal law systems in varying forms in all the communities that made up the present day Nigeria. In the South, the various criminal law systems were based on certain social norms, which prescribed punishment, through imprisonment as a form of punishment was not known.A more elaborate Moslem Criminal Law system existed in the North pioneered by the Maliki School made up of highly developed “Schools of jurists.”The English Common Law of crime was first introduced to Lagos colony in 1963 while customary criminal law applied outside Lagos. In 1904 however, the criminal c ode was introduced in Northern Nigeria. Following the amalgamation of the Northern and Southern Nigeria in 1914, the criminal code was extended to the whole country in 1916. The application of criminal code in the North was limited due to the wide jurisdiction given to the Sharia Court. Thus, two sets of criminal law were in operation in the North, which resulted in serious conflict.Hence in 1959, the penal code specially designed for the North was introduced to replace the criminal code. In 1958, customary criminal law was abolished. Thus, section 22 (10) of the 1963 Constitution (now section 36 of the 1999 Constitution) provides that “No persons shall be convicted of a criminal offence unless that offence be defined and the penalty therefore is prescribed in a written law.”See also Aoko vs. Fagbemi (1961) 1 ANLR Both criminal code and penal code cover only offences committed within the territories to which they apply. Difficulties may arise where an offence comprises several elements some, but not all, of which occur outside the territory. This problem is dealt with by section 12A Criminal Code? as well as section 4 Penal Code where the initial act or omission of such an offence occurs within the territory covered by a code and other elements occur outside, then the committer is liable as if all the subsequent element had occurred within the territory: Okoro v. A. G. (W/ N) (1965) 1 All NLR 283. But a man has a defence if he did not intend his initial act to have effect within the territory in which it was done. R. v. Osoba (1961) 1 All NLR 1.Where the initial act or omission of the offence occurs outside the territory, but other elements occur within and the committer enters the territory, he will be liable as if the initial act had occurred within the territory. Patrick Njovens v. The State (1973) 5 SC 17. For this purpose any mode of entry is sufficient. It is immaterial whether the entry into the state by the accused is voluntary or not; Patrick Njovens v. The State (1973) 5 SC 17. (supra); Adeniji v. The State (2001) 5 SCNJ 371 at 382; Waziri v. The State (1993) 3 NWLR (Pt. 496) 689. Note that the above provisions do not apply where the only material event occurring in the particular territory is the death of a person whose death was caused outside the territory at a time when he was outside ,e. g. if a person wounded in a fight in the South is carried across the boundary into the North and dies of his wound, the Criminal Code and not the Penal Code applies.CHAPTER 2 - DEFINITION AND LEGAL ELEMENTS OF AN OFFENCE?Definition Of An OffenceThe word “crime” does not appear in both the Criminal Code? and P.C. instead both use the word “offence.” However, in view of the use of the adjective ‘criminal’ in both codes. Nigerian courts have been using the words ‘crime’ and ‘offence’ inter-changeably.In s.2 “offence” is defined as an act of omission which renders the person doing the act or making the omission liable to punishment under the code. See also 53 Penal Code? It appears from the above definition that there is no special or intrinsic characteristic of a criminal conduct. A crime is what the law declares to be a crime. In Proprietary Trade Association v. A. G. Canada (1931) A. C. 310 at 320, Lord Atkin said “the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the state to be a crime and the only common nature they would be found to possess is that they are prohibited by the state and that those who commit them are punished.” Therefore, crime must be distinguished from sin. Though most acts, which are regarded as immoral, are also illegal. Nevertheless a conduct may be immoral but not a crime. Also a conduct may be a crime but not regarded as immoral by the people.S. 36 (12) 1999 Constitution provides that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law. Aoko vs. Fagbemi (1961) 1 ANLRLegal Elements Of An OffenceSection 2 of the criminal code provides the definition of an offence thus “An act or omission which renders the persons doing the act or making the omission liable to punishment under the code or under any order in council, ordinance or law or statute, is called an offence.”Various sections of the code define offences by forbidding particular conducts and imposing sanctions. Clearly discernible in the definition of any offence is the provisions for the presence of the dual elements of a physical act and a state of mind. Note, however, that offences of strict and vicarious liability may not necessarily be easily analyzed in such terms. Thus an offence would have grounded if an act of omission is done or omitted to be done in a particular state of mind.The Physical Elements Of An Offence Even though the physical element (normally called actus reus in English law) and the mental element (mens rea) may be ascertained before conviction for an offence, both elements may consist of a complex of physical or mental circumstances. The physical element (actus reus of a crime) may be a physical act, an omission or even a passivity or nonchalance. The physical element more appropriately described as a conduct also includes the events or consequences flowing from the conduct. However, there has not been any generally acceptable precise definition of the physical element in an offence. Legal analysts have rested their search for precise definition on the rather circuitous definition adopted by Glanville Williams that “actus reus means the whole definition of the crime with the exception of the mental element.” An act must have been executed or in the process of being executed by the accused person, to satisfy the requirement of the physical element. Intention not manifested in any way, however wicked, it might have been if executed ought not to be punished by the criminal law. Such intention might, however, warrant the intervention of the criminal law at the slight manifestation by an overt act. The reason seems to be that any thought of man (or desire) inhibited from being practicalized, finds expression in fantasy.An Omission Although most crimes attract punishment by the doing of an act, and although the law rarely punish for omitting to act, some crimes are defined such that failure to act will be criminal as that failure will be the act of the crime (i.e actus reus). Some instances where omissions would constitute the act of the crime in question can be found in the criminal code, e.g. sections? 199, 200, 346-348 and 300-385. See also section 99, 127, 128 penal codeThe Physical Element And The Problem Of Causation Proponents of the view that an act (physical element) or actus reus involves “events” and consequences of one’s conduct find support in the fact that the direct or indirect consequence of a particular act or conduct may satisfy the requirement of an act or actus reus or the physical element. However, there must be a nexus or a causal connection between the act of the accused and the consequence, e.g. the death of the deceased. See Frank Onyenankoya v. The State (1964) 1 All NLR 151. Held: In order to establish a charge of murder or manslaughter, the evidence must be such as to show that the death of the deceased was caused by the act of the accused, otherwise there would be no nexus between the accused and the factor which caused the deceased’s death. Problems of causation mainly arise in homicide cases. We will treat them in detail under Homicide, e.g. if A stabs B and 14 months later B dies, under section 314 Criminal Code , A did not cause the death of B.The Mental Elements Of An Offence In the definition of most offences, the proof required is that the accused committed the act (actus reus) in a particular state of mind, i.e. that he intended the act or knew what would be the result of his conduct. Note that in some offences, the proof of the state of mind of the accused would be unnecessary, i.e. in offences of strict liability. In some offences, in proving the act, the state of mind required may simply be that the accused had been negligent or careless. Many writers do not classify “Negligence,” “Careless,” Reckless” as states of mind.” But for our purposes here, without delving into controversies as to what is or is not a state of mind, for the purpose of analyzing and understanding the mental element requirement (i.e. mens rea) we should note some of the epithets used to describe the mental element. e.g. “Intentionally,” “Advisedly,” Knowingly,” “Fraudulently,” “Maliciously,” Negligently,” etc. According to Smith &Hogan, in order to properly “appreciate the meaning of the term “Mens rea,” it is necessary to distinguish between a number of different possible mental attitudes which a man may have with respect to the actus reus of the crime in question. These are “Intention,” “Recklessness,” “Negligence and Blameless Inadvertence.” Okonkwo & Naish analyzed the following mental states, Intention, Recklessness, Negligence, Accident, Unconsciousness and Knowledge. We agree with the contention of Okonkwo & Naish that great care should be taken in employing and drawing deductions from the definitions of such compendious concepts as above. These terms cannot, however, be said to be precise in scope nor are there clear standards by which one can be distinguished from the other.IntentionDesire for result is often said to be the hallmark of intention however vague or subconscious the desire may be. According to Turner, intention denotes the state of mind of the man who not only foresees but also desires possible consequences of his conduct. Except the particular offence prescribes an intent to cause a particular result, result intended by the accused is, immaterial, s. 24 Criminal Code , e.g., in burglary and house breaking, the specific intent required is an intent to commit a felony. Also in R. v. Steane (1947) KB 997, a British subject broadcasting for Nazi Government during the 2nd World War, his purpose apparently was to save his wife and children from concentration camp. After the war he was convicted of doing an act likely to assist the enemy with intent to assist the enemy contrary to a defence regulation. The court of criminal appeal allowed his appeal because the prosecution had failed to prove the specific intent to assist the enemy.Also, knowledge of the accused that death or grievous bodily harm was a probable consequence of her act, even if she did not desire that result was held to have satisfied the requirement of intention in Hyam v. D.PP. In Hyam v. D. P. P (1975) AC 550, a woman set fire to a house for the purpose of frightening,? another woman living in the house into leaving the neighborhood. O’s children were killed by the fire. The meaning of intention could be determined in answering the question as to whether D intended the death of O’s children. Ackner, J., directed the jury that in the law of murder, the accused intended death or serious bodily harm if she knew, when she did the act, that it was highly probable that it would cause death or serious bodily harm. She was convicted, and her conviction was upheld by the court of appeal and the house of lords. The point there was that knowledge of the accused that death or grievous bodily harm was a probable consequence of her act, even if she did not desire that result, the requirement of intention had been satisfied.Proof Of IntentionThe statement that “the devil himself knoweth not the intent of man” illustrates the difficulty involved in proving intention. No one is capable of seeing into another’s mind and of being able to state with absolute certainty what is his intention. Therefore intention can only be inferred from overt acts, e.g. intention to kill may be inferable from the severity with which a matchet blow was struck. R v. Onoro (1961) All NLR 33.Our court in discovering the intention of the accused, sometime resort, for assistance, to measuring the mind of the accused against what would have been the intention of a hypothetical, reasonable, average or ordinary man in the same circumstance. This is done by adopting the presumption that a man is presumed to intend the natural consequence of his act. This however should only be a guide to ascertaining what the real intention of the accused was. The presumption may be rebutted or negated by direct evidence: Nungu v. R (1953) 14 WACA 379 where the accused used the wooden haft instead of the cutting edge of a matcher to strike his brother who died as a result. The court accepted that from the facts, the accused may not have intended to kill but was still convicted of murder because he at least intended to cause some “grievous harm.”Sometime, our courts while using the “reasonable man” or natural consequence guide to ascertaining intent, do erect it into an irrebuttable presumption. This attitude was adopted by the English Court in D. P P v. Smith (1961) AC 290 (H. L.). Smith refused a constable’s order to stop whereupon the constable jumped unto the vehicle. Smith, knowing that the constable was hanging on to the vehicle deliberately pursed an erratic course and shook him off and the constable died. It was held that Smith had intended the murder of the constable.This attitude gave rise to two basic problems i.e.(1) From the way the presumption is often applied that which basically is a rule of evidence tended to be hardened paradoxically into a rule of law as an objective test of mens rea(2) It was not easy for jurists to expound the import of the phrase “natural and probable consequences.”To remedy the uncertainty created by Smith’s case, s. 8 of the Criminal Justice Act, 1967 was enacted in England to the effect that the presumption shall no longer be strictly followed but intention shall be inferred from all the evidence as appears proper in the circumstances. Note that in Nigeria, the presumption is expressly provided for in the law of sedition. Section 50 Criminal Code? However, the Federal Supreme Court has held in D. P. P. v. Chike Obi (1961)1 All NLR 186 at 195 that any such presumption can be rebutted by evidence of the accused’s actual intention. There is no general provision for the presumption under the criminal code. If the presumption is allowed, it will tend to obliterate the distinction between crimes of intention and crimes of negligence.Intention Distinguished From MotiveIt is necessary to distinguish intention from motive for “Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial as regards criminal responsibility” (See section 24 Criminal Code ).But in certain sections, our criminal code made motive expressly relevant for liability to ground, e.g. defamation (See sections 379 Criminal Code ; 10 Criminal Code ). It appears that motive is de-emphasized for the reason that if the prosecutor can prove the required intent, other extraneous factors would not determine liability. For example, a hungry destitute who went to pick some crumbs of food from a rich man’s table has all the same committed stealing. This is because even if his motive was to quench hunger, his intent was to “permanently deprive” the owner of those items (See section 383(2) Criminal Code ).Note, however, that the trial judge may take motive into account in passing sentence. Motive may prove or disprove criminal intent. Thus motive is of evidential value. See R. v. Steane (1947) KB 997, where the motive of the Englishman who broadcast for Germany during the Second World War (to save his family from torture) exculpated him from liability. Our courts also recognize the evidential value of motive. In Adetola v. R (1967) WRLR 174, Ademola CJF (as he then was) said, “If there is motive, it strengthens the case for the crown and becomes part of it.” Although the learned CJ added that motive cannot strengthen a weak case. See also R v. Plomp (1965) ALR 642.Recklessness This is the taking of unjustified risk with knowledge or an indifference that certain prohibited consequences will follow one’s conduct. The accused foresaw the consequence of his conduct and risked them. The English Law Commission has proposed that the standard test of recklessness should be “did the person whose conduct is in issue foresee that his conduct might produce the result and if so, was it reasonable or unreasonable for him to take the risk of producing it?” The precise nature of the foresight is not certain. A man is not reckless who foresees a criminal consequence as only a remote possibility. On the other hand, if it is certain to happen, it is construed as intention because he is deemed to have desired it. In-between these two extremes is a whole range of degrees of probabilities. Consequence may be described as possible, reasonably, likely, probable, very probable etc. The commonly used word in the criminal code is “likely” e.g. See SS 59, 81, 207 (i) 316(3), 330(2), 345, 347 and 373 Criminal Code . In R. v. Okoni (1938) 4 WACA 19. “Likely” in section 316(3) seems to have been taken to mean “reasonably probable.” In Idiong v. R (1950) 13 WACA 30, a consequence was said not to be likely if a reasonable man would not have expected it. The reasonable man test should be used only as a guide to what went on in the accused’s mind. The test of foresight in recklessness ought to be subjective as in intention i.e. did the accused foresee the consequence as likely. Otherwise recklessness will be elevated to negligence.NegligenceThis is failure to exercise the proper care which a reasonable man in the circumstance would have exercised so as to guide against injury to others. Professor Turner opined that it denotes pursuing a conduct neither foreseeing nor desiring the consequences. In criminal law there are degrees of negligence and for a conviction for manslaughter by negligence, the negligence must have been “gross” or of a very high degree.The courts in most jurisdiction draw a fundamental distinction between negligence in civil law and negligence in criminal law, at any rate where the crime is serious. In Dabholkar v. R (1948) A C 221, the privy council preserved the distinction between civil and criminal negligence but thought that since the offence is not a very serious one, the degree of negligence required to be proved is not so high as in manslaughter. Where an offence is not serious, the distinction may not be drawn; see Edu v. C. O. P (1952) 14 WACA 163 where a post office clerk gave keys of cargo containing parcels to his assistants and a parcel was lost. He was held guilty by negligence under section 173 (2) Criminal Code .Note that the test of reasonableness in negligence is always objective and there is no question of subjective approach to negligence. Even then the application of the test varies from case to case e.g. in cases of manslaughter by native doctors, the standard has been that their skill must be measured against that of reasonable qualified doctors. See R. v. Paki (1955) 21 NLR 63. This is in contrast with the standard applied in provocation cases where the accused’s conduct is measured against that of a reasonable man of his own standing in life See R. v. Adekanmi (1944) 17 NLR 99.KnowledgeUnder section 427 of the C. C, the mental element requirement of the offence of receiving stolen property is the knowledge that the goods were stolen and /or feloniously obtained. That of being an accessory after the fact to another’s crime is knowledge that other is guilty of an offence plus an intention to assist him to escape punishment. It means that knowledge of a particular existing circumstance may be the mental element requirement in the definition of a particular crime.The Problem Of Concurrence Of The Physical And Mental Element In Solving The No Liability Without Fault Problem In Criminal ResponsibilityIn Fowler v. Padget (1798) 7 TR 509, Lord Kenyon lent weight to the basis of criminal responsibility when he stated that “The intent and the act must both concur to constitute a crime.Rarely did English courts impose liability for a crime without first considering the presence of the dual elements of a physical act and state of mind, except in one case described as isolated in academic cycles in R. v. Larsoneur (1993) 97 J. P. 206.In so far as the presence of the dual elements are necessary for not only making definition and punishment of crimes logical and sensible but also for better understanding of the law of crimes, what falls under the above heading to be determined is how to treat the presence of the dual elements to ground the crime charged.Two theoretical problems emerge here. The first is whether to ground the crime charged, the presence of both the physical and mental elements have to be simultaneous i.e. to concur at the same time of committing the offence. Okonkwo/Naish seem to be of the above view, Smith & Hogan, by saying that “for there to be criminal liability, the actus reus and mens rea must coincide at one time,” are also of this view.But it is submitted that the above theory may lead to injustice and absurd results. The possibility of an absurd result arose in the case of Thabo Meli v. R (1954) 1 WLR 228, a celebrated Basuto Land case that went to the Privy Council. In the case, the appellants struck a man with the intent to kill him. Believing him dead, though, in fact, he was only unconscious, they rolled him over a cliff in order to make his death appear accidental. He died from the subsequent exposure. The defence argued that the intent to kill did not concur with the act of causing death and that the subsequent act which caused death was not accompanied by an intent to kill and that therefore in respect of the latter act, the accused should be guilty, not of murder but of the lesser offence of culpable homicide. The privy council, however, rejected the argument by saying that the transaction could not be divided up in this way.In R. v. Chiswibo (1961) 2 SA 714, in seeking to apply the locus classicus of the Thabo Melis case, the court opined that “so long as the transaction is continuing and the execution of the plan is not yet complete, any intention necessary to constitute any crime committed as part of the whole plan may be deemed to be a continuing intention.” The court held in the above case that the burying of the body was not part of the same preconceived transaction.In R. v. Church (1965) 2 All ER, the defendant was charged with the murder of his wife whose badly injured body was found in a river. Actually, the cause of death was drowning. He said that he took her to his van for sexual purposes, was mocked by her for failing to satisfy her, whereby a fight ensued. He knocked her semi-unconscious. He tried to arouse her for about half an hour but in vain, and thinking she was dead, was seized by panic and threw her into the nearby river.After reviewing the circumstances of the case, the defendant was acquitted of murder and convicted of manslaughter. In this case, it was clear that no mens rea actuated or fuelled the actus reus of murder and thus the defendant was rightly convicted of manslaughter instead of murder. Consider what would have been the verdict had the court on the earlier discussed theory of concurrence of the dual elements. Finally, it is submitted that our courts should adopt the latter theory of concurrence in dealing with the presence of the physical act and the state of mind, provided for under section 24 of the criminal code.?CHAPTER 3 SECTIONS 14 AND 25 OF THE CRIMINAL CODERESPONSIBILITY IN NIGERIAOur purpose here is to see if by any stretch of interpretation, the elements of an offence namely a physical act and a state of mind known as actus reus and mens rea in English law are truly covered by section 24 Criminal Code? First of all, it is pertinent to analyze fully the extent of actus reus and mens rea in English law. The basis of criminal responsibility later came to find expression in the Latin maxim Actus non facits reum nisi mens sit rea.In Fowler v. Padget (1798) 7 TR 509, Lord Kenyon said of the maxim “It is a principle of natural justice and our law that actus non facit reum nisi mens sit rea — the intent and the act both concur to constitute the crime.In Young Husband v. Luftig (1942) 2 KB 354, the aforementioned maxim was expressed to mean that “an act does not make a man legally guilty unless the mind is legally blameworthy.” Thus in English law, an act or omission (of an accused) and the state of mind must be proved to establish the crime charged. Professor Glanville Williams highlighted the limited use of imposing this restriction on the criminal law of referring to offences of strict and vicarious liability. As basis of criminal responsibility in England, the maxim under discussion has suffered various criticisms. In R. v. Tolson (1889) 2 QBD 69, Cave J said “The maxim appears uncouth.” Stephen J delivered a more pungent criticism of the maxim thus: “Though this phrase is in common use, I think it most unfortunate and not only likely to mislead, but actually misleading on the following grounds: It naturally suggests that apart from all particular definitions of crimes, such a thing exists as a mens rea or guilty mind and which expressly or by implication involved in every definition. This is absolutely not the case for the mental elements of different crimes differ widely.” However, despite the strictures, e.g. as envisaged above by critics, the merits and/or importance of the juxtaposition of actus reus and mens rea as represented by the maxim under discussion have been continuously recognized in modem judgments. See Lord Goddard C J. in Brend v. Wood (1964) 175 LT.“It is of the utmost importance for the protection of the liberty of the subject, that a court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens reas as a constituent party of a crime, the court shall not find a man guilty of an offence against the criminal law unless he has a guilty mind.” It is our view that the basis of criminal responsibility evinced by the maxim is justifiable and commendable as at least it creates a standard test for evaluating criminal conducts and the attempt by our criminal code under section 24 to enact a principle covering the maxim is also commendable. Professor Stephen in justifying the maxim submitted (aptly in our view) that:“the reasons for imposing this great restriction upon the law are obvious. If it were not so restricted, it would be utterly intolerable: all mankind would be criminals and most of their lives would be passed in trying and punishing each other for offences which could never be proved.” However, Cross and Jones have observed that it is important that the maxim (actus non facit reum nisi mens sit rea) should not be allowed to become the master rather than the tool of a criminal lawyer. It therefore means that lawyers should not adopt a mechanistic or mechanical approach in using the maxim to evaluate criminal acts. It is our view therefore that in dealing with the physical act and mental state provided for under section 24, lawyers should not allow the ends of justice to be sacrificed on the alter of technicalities involved in the application of the dual elements. For instance it would be absurd if excusable automatism (e.g. epilepsy, yawning, etc.) are not allowed as a defence if the act produced criminal results. In such cases there would be no point grappling with the proof of actus reus and mens rea or “act” and “intention” under section 24 Criminal Code .Full Analysis And Scope Of Section 24, Of The Criminal CodeSection 24 of the Nigerian Criminal Code which is ipsissima verba with 93 section 23 of the Criminal Code of the State of Queensland provided as follows in its three limbs:“Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will or for an event which occurs by accident...”Referring to the first limb of the section, Okonkwo and Naish argued that “It is clear that it is stating very fundamental and wide principles, though the exact extent of these is uncertain.” There seems to be judicial controversy as to whether the first limb of section 24 covers the common law doctrines of actus reus and mens rea (i.e. actus non facit reum nisi mens sit rea) or whether it has enacted a different rule of criminal responsibility. See the instructive arguments of Okonkwo and Naish at pp. 81-90 of their book.If we assume without controversies that under the first limb of section 24 that acts or omissions would cover actus reus, and “independently of the exercise of the accused person’s will” would cover mens rea, it then means that the basis of our criminal responsibility as well as the no liability without fault problem, subject to the problems of concurrence earlier discussed seems to be clearer. If that is the case, then we ought to evaluate more elaborately, what ought to be the scope of the physical element envisaged by section 24.An Act Under Section 24Smith & Hogan, Glanville Williams, Okonkwo & Naish all occurred in the view that “actus reus (an act) is the totality of all the elements in the definition of an offence except the accused’s mental state,” for Kenny, actus reus or an act means “Such results of human conduct that the law seeks to prevent.” Gordon G. H., another writer on criminal guilt while picking holes in Kenny’s approach, sought to define crimes in terms of conduct crimes and result crimes arguing that Kenny’s definition sought to centre on result crimes. On the preponderance of authorities on the various propositions of an act (Russel, Glanville Williams, Okonkwo, Smith and Hogan, Kenny, Gordon G. H. etc), it is our understanding that “An “act” means all the material elements, in definition of an offence except the accused’s mental state.” It is therefore submitted that the material elements ought to be: act or omission, circumstances, events and consequences. We therefore recommend that the proper approach will be to broaden the physical element provided for under the first limb of section 24. Criminal Code? to such a horizon as herein envisaged. Note that an act may be voluntary or involuntary. Involuntary acts include something done in an automatic state or accidental results of willed and unwilled acts.An Omission Under section 24. Criminal Code According to Okonkwo and Naish, in the absence of a legal duty to act, omission is scarcely criminal except in some notable instances, e.g. murder and manslaughter, misprision of treason, etc. Where omissions become the act of the crime. If X stands callously by while Y’s one-year-old baby drowns in a pool of water four feet deep, there seems to be no offence. In this regard, the approach of the Belgian Penal Code, amended in 1961, seems better-duties are imposed on people present to save those exposed to serious danger: Omissions causing harm to property are not criminal, e.g. If Kalu stands idly while the end of a cigarette sets fire to Opara’s house, there is no offence in law even though he could have easily stamped his foot on the cigarette to save the property.Okonkwo and Naish have argued in this light that:“...human nature, being what it is, it would be harsh if men were to be pushed too far by the criminal law into doing their neighborly duty... Specific duties can be added if there is an unwarranted gap in the criminal law . . . liability for omissions in civil law is much wider” In the same vain, Lord Macaulay in his Notes on the Indian Penal Code submitted:“It is evident that to attempt to punish men by law for not rendering to others all the services which are not their duty to render... would be preposterous. We must grant immunity to the vast majority of those omissions which a benevolent morality would pronounce reprehensible and must content ourselves with punishing such omissions only when they are distinguished from the rest by some circumstance which marks them out as peculiarly fit for penalCircumstances, Events And Consequences As Part Of An ActIt has been argued, that there ought to be no criminal liability unless the whole actus reus (i.e. either act or omission as conduct, events, circumstances and consequences) are fully present and proved.In White v. R (1910) 2 KB 44, the accused put potassium cyanide (KCN) in his mother’s drink-intending to murder her. Later, the mother was found dead with the glass partly filled up beside her. Medical evidence revealed that she died of heart attack and not poisoning and that the quantity of KCN administered was insufficient to cause death. The accused was acquitted of murder and convicted of attempted murder because (it was contended) although the intended consequence (death) had occurred it has not been caused by the accused’s conduct and thus an element of the actus reus of murder (accused’s conduct) was missing and even though the circumstances and even the mens rea were present.The question that will arise from our own perspective is whether the physical element under section 24 Criminal Code? is supposed to be interpreted as to include act or omission, events, circumstances and consequences. Both section 13 of the Tasmanian Penal Code and section 23 of the Queensland Criminal Code are ipsissima verba with our section 24 Criminal Code . In Vallance v. The Queen (1961) 33 ALJ 182 section 13 of the Tasmanian Penal Code failed to be applied. Two kids were banging on some galvanized iron tanks abandoned in a scrap yard and were ordered to go away by the appellant who was living in a nearby house. The children refused and kept hauling stones at the appellant. Feeling irritated, the appellant took an air gun and shot over the fence into the scrap yard. A pellet hit one of the kids and caused her a very minor injury. On a charge of unlawful wounding, the appellant’s defence was that he aimed at the ground in the direction of the girl. In convicting him, the court held that his intention in shooting transcended his positive desire, the result and foreseeable circumstances. Section B of the Tasmanian Penal Code which is in pari materia with our section 24 on being applied, though the learned justices of appeal differed in opinion on certain grounds, they nevertheless held that the “act” in question in the aforesaid section covers events and possible results of accused’s conduct. Note that as for the mental element provision under section 24 Criminal Code? we ought to consider the dual connotation of mens rea under English law. (1)Specific mens rea- i.e. the state of mind of an accused person required to be proved before the court with respect to the particular crime charged to establish the guilt of the accused.(2)General mens rea is taken to mean a general principle of statutory interpretation and criminal responsibility pervading the entirety of the English Criminal Law system, that whenever a court is considering the definition of an offence, it must presume until the contrary is proved, that the definition requires proof of a guilty mind against the accused. But many writers have argued that specific mens rea is the application of the principle in general mens rea.Note also that the basic mental concepts already discussed are Intention, Recklessness, Negligence, Knowledge and perhaps automatism are relevant in understanding the mental states provided for under the various sections of the code.Note specially that section 2(4) Criminal Code? provides that the provisions of chapter 5 (Including sections? 24 and 25) shall apply in relation to any offence against any legislative enactment and to all persons charged with any such offences. Thus, the provisions of section 24 no doubt extends to all legislative enactments or statutes of federal and state legislature in both civil and military regimes including decrees and edicts. Note the connotation of paragraph two of section 24 to the extent that unless the intention to cause a particular result is expressly declared to be an element of the offence constituted in whole or in part, by the act or omission (actus reus) the result intended is irrelevant. Brett & McLean were of the view that the effect of this second limb of section 24 appears to be that “there is no presumption that mens rea is required unless the statute creating the offence expressly says so.” But this conclusion is manifestly absurd and is the opposite of the application of mens rea in English Law.Okonkwo & Naish, while disagreeing with Brett’s conclusion above submitted that the second paragraph merely enacts that where an intended consequence is not mentioned as part of the definition of the offence, then it is not to be taken into account. It is also our humble opinion that the above provision can have the effect of section 8 Criminal Justice Act 1967 England abolishing the presumption, that once an act is committed a man is deemed to intend its natural and probable consequences. This connotation seems to be more logical and accords with common sense and the intent of a good criminal justice system. But our courts now have the duty to interpret the phrase. Note that the third paragraph of section 24 stressed that motive is irrelevant as regards criminal liability. This had earlier been explored.Section 25 (What Is Its Effect On Actus Reus and Mens Rea?) Section 25 provides that “A person who does or omit to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule maybe excluded by the express or implied provisions of the law relating to the subject. By simple analogy, section 25 exculpates anyone who may have committed an offence under an Honest, and Reasonable mistake of fact. Whether a mistake is honest or reasonable is subject to judicial determination and the court must take all the circumstances of a particular case into consideration. For a mistake of law, full liability attaches and section 25 might not come in aid of anyone who commits an offence, under a mistake that the act is contrary to a particular criminal statute. The maxim, which is now age-long, is ignorantia legis neminem excusat (ignorance of the law is no excuse). It is, however, submitted that it is not wrong to argue that considering our high illiteracy level, coupled with the fact that we operate a largely transplanted legal set up, together with the fact that we have series of undemocratic governments i.e. dictatorships, whereby our laws were not debated by legislatures (i.e. representatives) of the people, but decrees are churned out frequently sometimes retroactively, the argument that ignorance of the law is no excuse need be reviewed in our own circumstances.For present purposes, it is submitted that the effect of a mistake of fact under section 25 is that it makes proof of actus reus and mens rea unnecessary including determining the question of concurrence.Inconsistencies In The Doctrine Of Mens Rea In English Law Another reason for discouraging the continuous use by our courts of the doctrines of actus reus and mens rea as basis of criminal liability is that as a doctrine, mens rea has been variously interpreted and understood to the extent that it can lead to absurd results and judicial manipulations even in cases with pari materia facts. In R. v. Hibbery (1869) LR 1 CCR 184, a man charged under section 55 of the offence against the person’s act, with taking an unmarried girl under the age of 16 out of the possession of her father. The accused in this case was aware of the girl’s under age but unaware that she had a father. His conviction was quashed on appeal for lack of mens rea. But in R. v. Prince (1875) LR 2 CCR 154, the accused was charged with an offence with similar facts under the same section. In his defence it was clear that he genuinely believed that the girl he took away was above 16 years. He was convicted on appeal. But he could well be said not to have mens rea by his genuine belief that the girl he took away was over 16 years of age.See also the bigamy cases of:(1) R. v. Tolson (1889) 2 QBD 69(2)R. v. Wheat And Stocks (1921) KB 154. See also(3)R. v. Gould (1962) 2 QB 207. In Cundy v. Legocq (1884) 3 QBD 207, a publican was held guilty of selling liquor to a drunk person contrary to a provision of the Law. But he never knew that the person was already drunk. He could also have been said not to have mens rea. In Shellas v. Derutzen (1895) 1 QB 918, someone who sold liquor to a police constable on duty and in plain clothes was held not guilty because he believed the policeman to be off duty. These inconsistent decisions on mens rea are no good pointer to the attitude our courts should adopt in determining the mental element in an offence.By drawing analogy from the practice in Queensland, operating the same Code with Nigeria, it becomes more obvious that our courts need not continue applying the doctrines of actus reus and mens rea.In Widgeshire Co. v. Bonney (1967) 4 CLR 977 at 961-962, Sir Samuel Griffith J who himself drafted the Queensland Criminal Code declared that:“Under the criminal law of Queensland, it is never necessary to have recourse to the old doctrine of mens rea, the exact meaning of which has been the subject of much discussion. The test now to be applied is whether the prohibited act was or was not done accidentally or independently of the exercise of the will of the accused person.”Also in Thomas v. Macheather (1920) St. R. Qd. 166 at 175, the above dictum was heavily relied on and the learned judges (Cooper CJ and Luckin J) went on to pungently refer to mens rea thus:“It seems to us that the legislature has by the express provisions of sections 23-25 (our 24-26) laid down in clear terms what the law in future should be and directed that the courts should in future be guided by reference to the tests prescribed by the language of those sections.”In other instances, e.g. Anderson v. Nyston (1914) St. R. Qd., the Queensland Courts had constantly bluntly jettisoned the doctrine of mens rea as no longer part of the Queensland Criminal Law. In the above case, Douglas and Philip and even dissenting Webb concurred in the fact that mens rea is no longer part of their law of criminal responsibility.Brimblecome v Duncan; ex parte Duncan [1958] Qd R 8 where Stanley J. said:“On the present state of authorities, it is too late to argue in Queensland that section 23 (our 24) is equivalent to the doctrine of mens rea.” Mack, J., in Maloney (1959) Qd. R.164 also proclaimed the extinction of mens rea from the time the Queensland Code became law. In Adamu Alli v. Okulaja (Unreported) it was pointed out that Nigerian courts are free to determine the application, extent, or meaning of common law doctrine within the Nigerian context. Collin Howard in 1962 edition of Modem Law Review, summarized the position of criminal responsibility in Queensland thus:“It can be said through the operation of section 23 and 24 (our 24 &25) of the criminal code, the principle that there should be no criminal liability without fault has been vigorously preserved in Queensland. It is submitted that this principle is worth preserving. The virtue of a well drafted Code in this respect is that it puts the intention of the legislature beyond doubts.”From all indications, our own supreme court has fallen in line with the Queensland approach. In the case of Ovienfus v. The State Vol. 10 Digest of Supreme Court Cases App. No. 74/83, decided in October 1984, the appellant undoubtedly killed the deceased thus it was easy for the prosecution to establish the actus reus.Therefore, in the words of counsel to the appellant, “It is the mens rea ingredient that constitutes the subject of controversy.” The Supreme Court of Nigeria, per Karibi Whyte, JSC stated inter-alia on section 22 Western State Criminal Code? (Similar to section 24 Criminal Code ).“This is a clear misunderstanding of the jurisprudence of the criminal code. Although very familiar and often used common law concepts, the expressions mens rea and actus reus have ceased to be relevant in the interpretation of the criminal code, based in the Queensland Code of 1899 drafted by Sir Samuel Griffiths. This is because of their lack of precision. The provision of section 22 of the Criminal Code of Western Nigeria LWN 1959 (ipsissima verba with section 24 Criminal Code? Nigeria) which defines criminal responsibility as designedly refrained from the use of those Latin expression. In that section, the expressions voluntary act and intention have replaced those concepts.Thus where a prohibited act results, there is responsibility for the commission of such a prohibited act as a situation. Both ingredients constituting the offence are complete.” It is submitted that this bold attempt by our highest court to illuminate what hitherto could be classified as one of the dark crevices of our criminal law is laudable.CHAPTER 4General Defences A list of general defences is contained in chapter 5 of the Criminal Code? By virtue of section 2(4) of the code any of these defences can be raised at the trial of any offence whether or not it is created under the code. Such defences include the following:AccidentSection 24 Criminal Code? provides inter alia, that a person is not criminally responsible for an event which occurs by accident. See also section 48 Penal Code? Accident has been described as an event, which is unintended, unforeseen and unforeseeable. See Adelumola v. State (1986) 3 SCNJ page 71 at 77; Bello v. A. G. Oyo State (1986) 12 S. C. 1. It is argued by Okonkwo & Naish that it is not a defence per Se in relation to offences in which intention is a requisite element. It is obvious that the meaning of the phrase “an event which occurs by accident’ ‘is not capable of being given a clear- cut, all-embracing meaning. In the Queensland case of R. v. Martyr (1962) Qd. R 398, the accused killed the deceased by a blow to the chin which would not have caused serious damage to a normal person but which was fatal to the deceased because of some unusual weakness in the structure of his skull. It was held that the death was not accidental because it occurred as a direct result of the accused’s blow. He was convicted of manslaughter. This decision is unsupportable because it tried to draw a distinction between cases where the event is the result of unforeseeable supervening occurrences and cases where the event is the result of an unforeseeable inherent weakness in the victim and to say the accident will only apply in the former but not in the latter cases. In any event, such distinction does not appear in the language of s. 24 Criminal Code? and cannot be part of Nigerian law. S. 24 Criminal Code? would appear to cover cases where the event is due to the inherent and not reasonably foreseeable weakness of the victim as well as those where it is due to supervening unforeseeable occurrence. See Mamote Kulamg of Tamagot v. R. (1964) 111 CLR 62. Note that the unlawfulness of the act/omission resulting in the unlawful event will not deprive the accused of the defence of accident under the criminal code. See Timbu Kholian v. R. (1968) 42 ALJR 295. Under the penal code, however, the defence of accident is only available where the unlawful result was produced in the course of doing a lawful act. In Abdullahi v. Katsina N/A (1961) NWLR 12 the defence was not available to the accused who killed another person while engaged in an unlawful fight s. 48 Penal Code? , is clearly worded differently from s. 24 of the Criminal Code Okonkwo and Naish suggest that in defining the term “accident,” three possible approaches may be adopted.1.Any event or result which is too remote or indirect to a consequence of the accused’s unlawful act qualifies as accident. This accords with the direct consequence theory formulated in Re Polemis (1921) 3 KB. 510. See R. v. Martyr where accident was held not to apply where the event was a direct consequence of the act done by the accused.2.An event which a reasonable man in the shoes of the accused would not have foreseen as likely or probable, will qualify as accident. This accords with the reasonable foreseeability theory formulated in the Wagon Mond (1961) AC 388. See V Alance v. R. (1961- 62) 35 ALJR 182 while interpreting s. 13 (1) of the Tasmanian Code which is similar to ours. 24 Criminal Code? The Australian Court (Per Dixon C. J.) said that event occurring by chance cover “event which the person who might otherwise be criminally responsible neither intended nor foresaw as possible results of his conduct. They must, too, be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct.”This appears to be the test most favoured by Nigerian Courts. E.g. the Supreme Court per Oputa J.S.C said in Adelumola v. State (1986) 3 SCNJ page 71that “an event is thus accidental if it is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence.”Recently in Amayo v. The State (2001) 12 S. C. (Pt. 1 Page 1 at 8 Uwaifo, J.S.C said “an accident is some sudden or unexpected event taking place, upon the instant, without one’s foresight and which produces a result not foreseeable.”3.An event which the accused himself could not have reasonably foreseen as likely or probable. This is a rather subjective test which is unlikely to gain recognition of the courts.For a long time, Nigerian Courts merely applied s. 24 Criminal Code? in a few cases without proper discussion. See e.g. Iromantu v. The State (1964) 1 All NLR 311; The State v. Appoh (1970) 2 All NLR 218. Okonkwo and Naish posited that the decisions in R. v. Nameri (1951) 20 NLR 6 and R. v. MTAH (1961) All NLR 590 would have been different if s. 24 had been applied.However, there seems to be a changing attitude by the Nigerian Court e.g. See Amayo v. The State (2001) 12 S. C. (supra) where the Supreme Court carried out a detailed examination of s. 24 Criminal Code Mistake of FactAs earlier stated, if the accused is not aware of the facts bringing his act within the offence, he is not responsible for the offence. See sections 25 Criminal Code , 45 P. Code.See also Ogbu v. R. (1959) NRNLK 22 at 24 - 25; R. v. Gould (1962) 2 QB 207. Note that most times, for the defence of mistake to avail, the mistake must be both honest and reasonable. See:(1) Gadam v. R. (1954) 14 WACA 442(2) Ifereonwe v. R. (Unreported)Section 45 Penal Code? provides, “Nothing is an offence which is done by a person who is justified by law or who by a reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.”Thus, unless knowledge of the law is expressly stated to be an element of the offence, a mistake of law cannot avail an accused under both sections 25 Criminal Code? and 45 P.C. See Ogbu v. R. (1959) NRNLK 22 at 24 - 25; Note, however, that those suffering from various incapacities may not be judged on the basis of either mistake of fact or law, but based on proof of such, e.g. insanity, immaturity, etc. Also defence of bona fide claim of right under section 23 Criminal Code? appears to be another limitation of section 25 Criminal Code Also, it appears that what the court would be ready to accept as a defence is only a mistaken belief in a state of facts surrounding a particular act, and not a mistaken belief in the consequences of an act. See R. v. Gould (1962) 2 QB 207 (supra). The accused persons introduced a mixture of Glycerine, Dettol and Surf into a woman’s vagina in an attempt to abort her pregnancy; she died as a result. Part of their defence was a safe procedure of abortion. Court rejected their defence of mistake because it was a mistake of consequence not a state of facts or affairs.Under the criminal code section 25, the subjective test may be adopted to determine an honest mistake. As to whether a mistake is reasonable, the test appears to be both subjective and objective. In Gadam v. R. (1954) 14 WACA 442(supra), the accused believed that the miscarriage and mortal illness of his wife was caused by the witchcraft of an old woman. He killed the old woman in consequence. It was found as a fact that the accused’s belief was bona fide and that a belief in witchcraft was prevalent in their locality. WACA affirmed his conviction for murder on the ground that the mistake was unreasonable. WACA referred to Ifereonwe where it had held that a man who killed another in the belief that he was bewitched by him could not rely on a reasonable mistake. Professor Okonkwo criticized WACA’s decision above, arguing that the standard of reasonableness applied in both cases do not appear to be the usual test of the ordinary man of that accused standing and position in life, from a similar environment but that the reasonable man put in perspective by the court appears to be an educated, discerning individual. Compare the test of a reasonable man in England, U. S., and what ought to be the test in Nigeria. However, the courts have continued undeterred in the same approach to supernatural beliefs especially murder cases. See Ajidahun v. The State (1991) 9 NWLR (Pt. 213) where the Court of Appeal stated:“It is sad and disheartening that a member of the Bar in the last decade of the century still believes in mysticism and nonsense, so much so as to postulate that it was responsible for tilling a human being. Such a belief to my mind is not only unreasonable, but preposterous. I am, however, bound to consider the defence of the appellant, however, bizarre or unreasonable it might sound.”In Queen v. Tabigen (1960) 5 FSC 8 the FSC stated that “a defence found on witchcraft had always been rejected in murder cases and we do not intend to depart from that statutory rule.” It is submitted that it would be better to de-emphasis the reasonableness or otherwise of a belief in witchcraft. See Godwin Josiah v. The State (1985) 1 NWLR 125.Oputa J S. C (as he then was) seems to have put in perspective what appears to be a better explanation for the rejection of defences based on a belief in supernatural occurrences or witchcraft rather than the unreasonableness doctrine often relied on. In Ihonre v. The State (1987) 11 - 12 S. C 143, he stated inter alia,“The facility and ease with which such a defence can be set up does not pose a very serious problem... When a crime as heinous as murder is committed, there is usually public outrage and outcry. But when the actual trial commences, there is usually sympathy for the accused. The courts should be able to keep a judicial and proper doctrine between the earlier outrage and outcry and then later that the innocent be exonerated but the guilty be convicted and punished. This is one reason why the courts should be very slow in accepting facile defences that are in the main as subjective as a man’s belief which has no objective standard against which it may judged.”The views of Oputa, JS C and Okonkwo who argued that the WACA in the earlier discussed witchcraft cases would have found their beliefs (accused natives) reasonable but gone on to convict based on the second arm of section 25 (which provides that an accused whose mistake is bona fide and reasonable is liable to no greater extent than if the mistaken facts were true), could be reconciled to achieve the same purpose. E.g. even if the belief was reasonable on the facts, was it lawful to kill a with or is revenge an acceptable defence?From this perspective, the convictions could still stand unchallenged. Note that Oputa’s view was based on the second limb of section 28 Criminal Code on delusions, which was couched in the same way as section 25.Note also that section 45 of the penal code does not require a mistake to be reasonable but to have been made in good faith to be a defence. No recent case is handy which considered the defence of a mistake made in good faith under the penal code or reasonably and honestly under section 25 Criminal Code Under the penal code it appears that subjective test should be adopted to determine whether the accused acted in good faith. See, however, Garke v. The State (1978) FCA/K/54/78. Note that the defence of mistake may be expressly excluded or by necessary implication. See section 25 Criminal Code Where a defence of mistake of fact is established, the liability of the accused shall be to no greater extent than if the mistaken fact were true. The effect of this is that even if the accused is able to show that he was acting under a mistake of fact, he may still not escape liability e. g. to mistake one’s friend for a thief and to kill him (R. v. Aliechem (1956) 1 FSC 64 does not relieve one of criminal liability because on the facts as the accused believed, he is still criminally liable). See also R. v. Wheat And Stocks (1921) KB 154.Bona fide Claim of Right Under section 23 C. C, it is an acceptable defence to a charge of any offence relating to property for the accused to show that with respect to the said property, he was acting in the exercise of an honest ‘claim of right’ and without intention to defraud. See:(1) R. v. Vega (1958) 4 WACA 8(2) IGP. v. Emeozo (1957) WRNLR 213. Note that under the penal code, the offence of Bona fide claim of right is implied under the wide provisions of section 45 Penal Code? This defence may be raised in any charge relating to property e.g. stealing, malicious damage to property, obtaining by false pretences, robbery, house-breaking, demanding with menace, recovering stolen property, arson, etc. The knotty issue that always arises under this section is whether the defence is only available where the accused, in fact, had a lawful claim or right over the property in question, or whether the section is to cover circumstances where the accused believes (no matter how the belief came about) that he has a right to the property, but in actual fact he has no legally protected right. In IGP v. Emeozo (supra), the accused was charged with demanding property with threats under section 406 Criminal Code? He demanded money from the complainant alleging that the complainant had committed adultery with his wife, and that if the complainant did not pay, he would sue him for compensation under native law and custom. The Magistrate, not believing that adultery was committed, rejected the accused’s defence of bona fide claim of right and convicted him. The high court relying on R. v. Bernhard (1938) 2 KB, where it was held that a person has a claim of right if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or fact, reversed the decision.It is, however, submitted that it is unlike the law to create a refuge for malicious damage of people’s properties. A defence not based on a belief in the existence of a right in law or in fact has the capacity of opening a floodgate of illegalities. It would have been more definitive if for instance a person claiming a right over landed property can only be accommodated under the section if he has a title recognized and protected by the existing laws. This appeared to be the trend in interpretation of the section, especially when there was allegation of malicious damage to property.In Ejike v. IGP (1961) 5 ENLR, the court implied that the proper approach would be that after asking whether the claim was honest, the court would then inquire whether it was reasonable. In the case of Ohombamu v. (1989) 6 NWLR (Pt. 155) the court of appeal reviewed the following cases: Ejike v. IGP (supra); Nwachukwu v. Cop (1971) ECSLR; Ukaegbu v. Cop (1972) 2 ECSLR, which had followed the English case of R. v. Clemens (1989) QB where it was held that the act done must be reasonable. The court allowed the appeal of the appellant whose conviction was based on the fact that the trial court considered the mode of exercise of the right unreasonable. The court of appeal held that all those cases that followed R. v. Clemens (1989) QB were wrongly decided. The court followed the supreme court’s decision in Dabierin v. The State (1968) 1 All NR and Oteri v. Ofanughe (1979) 2 CA 273 which expressly refused to follow Clemens. The court thus held that once a claim of right is bona fide (in good faith) the required mens rea is negative. The court said “The extent of the damage done by him, while it may be a factor to be taken in consideration in determining as a fact whether his claim of right is honest or bona fide, it cannot restore the mens rea that is already negative by the finding that he had an honest belief that he had the right to do what he did.”See also the following cases which seemed to suggest that for the defence to hold, the mode of pursuing the claim must not be unlawful: Ejuren v. C. O. P (1964) 1 All NLR; The State v. Okolo (1970) (Unreported).However, the above cases were criticized on the ground that it is not part of the requirement of Section 23 that the conduct of the accused must be lawful. See also Owonikoko v. The State (1990) 7 NWLR (Pt. 162) and the English case of R. v. Skivington (1967) 1 All ER.Both section 30 Criminal Code? and section 50 Penal Code? contain similar provisions as to the criminal responsibility of a child. Under the two provisions, children are categorized into three, these are:(a)A child under the age of seven who is not criminally responsible for any act or omission.(b)A child who is seven or over, but under the age of twelve who is not criminally responsible for an act or omission unless it is proved that at the time of doing the art or making the omission he had the capacity to know that he ought not to do the act or make the omission. Note that there is an irrebuttable presumption of law that a child below twelve is incapable of having knowledge though he may be convicted of the lesser offence of indecent assault. See R. v. Williams (1993) 1 Q B. 320.(c)A child of twelve years or above becomes fully responsible under the criminal law. However, see the Children and Young Persons Act, which defines a “child” as a person under 14 and a young person as 14 years but under 17 years. Under the Act any person coming within these two categories are subject to the special procedure in juvenile courts.Husbands and Wives Section 36 of the Criminal Code? provides that neither the husband nor the wife can incur criminal responsibility for doing any act in respect of each other’s property. Thus a husband cannot be charged with willfully setting fire to his wife’s house. See R. v. Carton (1943) Q. W. N. 8. Note that the defence here is limited to offences against property. A husband can therefore be guilty of assaulting his wife: Alausa v. Odusote (1941) 7 WACA 140. However, under Section 6 Criminal Code , a husband cannot be guilty of any offence involving “unlawful” carnal knowledge, e.g. rape, but he can be guilty of indecent assault on her; Alausa v. Odusote (1941) 7 WACA 140 (supra). Note that the defence under section 36 Criminal Code? is subject to four limitations i.e.(a)The defence applies only to the husband and wife of a monogamous/Christian marriage.(b)The husband and wife must be living together at the time of the alleged offence. See R. v. Creamer (1919) 1 KB 564.(c)The defence will not apply when the act is committed by a spouse who is “leaving or deserting” or about to leave and desert the other.(d)The defence will not apply where the act is accompanied by an intention to injure some third party. Note that the position under the Criminal Code? is different from the position in England where by virtue of section 30(1) of the Theft Act 1968, spouses can be guilty of stealing from each other as if they were not married though prosecution can only be with the consent of the DPP. R. v. Withers (1975) CLR 47.Insanity Insanity is one of the difficulties encountered in trying to determine criminal responsibility. As a defence to any charge, it has always been a hard knot to crack in fixing the degree of mental disorder that would negate criminal responsibility. The main difficulty lies in drawing a line or lines between any possible acceptable standard of behaviour and deviations therefrom which may be loosely called mental illness. From our own point of view, defence based on unsettled or diseased minds, which imply that were the factor or factors interfering with the mind and also with freewill and free choice not present, the accused would have acted otherwise to go to the root of criminal responsibility. These include automatism and unconsciousness, e.g. epilepsy and sudden blackout, intoxication, delusions, insanity, etc. for the fact that there can hardly be said to be an established or generally acceptable standard of behaviour and sometimes, it is loosely said that most “sane” people also have instincts of insanity, e.g. (acting violently in a fit of anger). The adoption by the criminal law of the dual elements of an offence so far discussed is commendable as at least a standard test of criminal responsibility. This is more so in the face of continuing controversies arising from irreconcilable psychiatric theories. Okonkwo and Naish, lamented the uncertainty shrouding this problem of criminal responsibility thus: “The world is not simply divided into those who have the capacity to control their behaviour and those who have not. The case of the psychotic living in a fantasy world of his own may be easy to decide. But what about the psychopath (sometimes called sociopath) who persists in antisocial conducts for no particular reason that could be attributed to mental illness? If the insane man can claim that he could not help himself because of a disease of the mind (whatever that might mean), cannot the man brought up in a criminal environment and taught to regard thievery as normal claim that he too could not help doing what for him was a perfectly natural conduct? And what of the man who is not psychopathic or sociopathic but who is abnormally irritable or stupid or feeble-minded or easily led by others?”The MacNaughten Rules Perhaps, on the ground that responsibility for one’s acts is the essence of the criminal law and that the capacity to choose between a right and wrong act is the essence of responsibility, the first test aimed at determining the degree of mental disorder required to relieve criminal responsibility was fast seriously propounded in England in 1893. In an opinion given to the House of Lords, on what constitutes insanity, after the famous MacNaughten’s case (1843) 10 GL and P, the following emerged as the rules:(1) That everyone is presumed sane until the contrary is proved.(2) That it is a defence for the accused to show that he was laboring under such a defect of reason due to disease of the mind as either:(a) Not to know the nature and quality of his actor(b) If he did know this, not to know that he was doing wrong. (c) That if a man commits a criminal act under an insane delusion, he is under the same degree of responsibility as he would have been on the facts as he imagined them to be. Expectedly the MacNaughten rules was later greeted by a barrage of criticisms especially from psychiatrists who pointed out that there existed mentally ill people who though may be able to appreciate that an action may be wrong, but might find themselves under a compelling emotional pressure to perform the act (e.g. paranoia). They argued that such people ought not to be responsible in any reasonable sense of the word for such acts. In 1953, the Royal Commission on Capital Punishment declared the MacNaughten rule “so defective that the law on the subject ought to be changed.” The British parliament, however, did not jettison the MacNaughten rule but enlarged it only with respect to killing of human beings to accommodate diminished responsibility such that whoever killed while suffering from abnormality of mind would be guilty not of murder but of manslaughter. We may state straightway that the MacNaughten rule on insanity is not part of our law. At best it may be referred to as persuasive authority or to clear ambiguities.The Position In NigeriaInability To Make A Defence Section 223 Criminal Procedure Act provides for the procedure to be adopted by courts when an accused person is suspected to be of unsound mind. Under this provision, when a judge or a magistrate holding a trial has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence, the court shall investigate it, either in the presence of the accused or in his absence if his presence would be against public decency or against his or other persons’ interest. The court may remand the person first for one month for observation in an asylum until certified fit to make a defence.In R. v. Ogar (1961)1 All NR 70 which followed the English case of R. v. Podola (1960)1 QB 325, it was pointed out that it is for the judge or jury to decide the question of fitness or not if the accused is suspected to be insane, to stand trial and for that purpose, they may make use of their own observation of the accused and they are not bound by the certificate of the medical officers: In R. v. Madugba (1958) 3 FSC 1., it was stated that great value ought to be attached to the medical opinion. It needs to be pointed out that section 223 Criminal Procedure Act , by referring to incapacity to make a defence, in no way relieves criminal responsibility. It merely puts criminal proceedings on hold while the incapacity to make a defence lasts after which proceedings would commence. Onyejekwe v. The State (1988) 2 SCNJ 185.In Eledan v. R (1964) 1 All NR 146, a doctor’s certificate stated that the accused was mentally fit to stand trial and he showed by his conduct that he understood the difference between giving evidence on oath and making an unsworn statement. His statement was incoherent, but the judge stated that in his considered opinion, the accused was playing the fool. It was held that there was no sufficient reason for the judge to suspect that the accused might not be fit to stand trial and that the judge was right in declining to follow the procedure laid down in section 223 Criminal Procedure Act . From a practical point of view, however, it means that section 223 Criminal Procedure Act has had a tremendous effect on the development of the law of insanity in Nigeria. This is because of the ease with which our courts apply section 223 Criminal Procedure Act sometimes in unsatisfactory conditions and depending on the expectations of the judge or jury as regards conduct of the accused before the subsequent trial which may ultimately lead to untold hardships and injustice.In Podola it was held that mere hysterical amnesia preventing the accused from remembering the events in question is not enough to halt the trial. Professor Glanville Williams had pointed out that it is unsatisfactory to remand an accused for observation without first deciding whether he did the act alleged because a man might be detained for a considerable time, only to be later tried and found innocent. Professor Okonkwo argued that this is especially so in Nigeria where the process of observation sometimes continue beyond the statutory time and where the accused may not be aware of his legal rights. It is submitted that the detention provided for under section 223 Criminal Procedure Act if exercised to the detriment of anyone, can be attacked in court as unconstitutional, i.e. against the presumption of innocence provided for under section 36, 1999 Constitution.Before an accused can successfully rely on the defence of insanity as a criminal charged, he must establish the conditions contained in section 28 Criminal Code? i.e.1.That at the time of committing the crime he was suffering from mental disease or natural mental infirmity.2.That the disease or infirmity was such as to have deprived him of one of the following capacity i.e.:(a)Capacity to understand what he was doing or(b)Capacity to know that he ought not to do the act or make the omission or(c)Capacity to control his actions. Mental disease covers many different types of mental abnormalities which may impair the capacity of the sufferer. The judge must listen with care to the significance of a particular abnormality as expounded by medical evidence, decide degree to which the abnormality has impaired the capacity and therefore responsibility of the accused and whether that degree is sufficient to relieve him of criminal responsibility. Note that in R. v. Omoni (1949) 12 WACA 511 it was stated that mental disease is distinct from and is meant to go beyond natural mental infirmity. An insight into what may constitute a mental defect may be found in the English Mental Deficiency Acts of 1913 to 1938, where mental defectiveness is defined as “a condition of arrested or incomplete development of mind, existing before the age of 18 years whether arising from inherent causes or induced by disease or injury.” The Acts, which was replaced by the 1959 Mental Health Act, was passed not for the purpose of criminal responsibility but for providing for the care and protection of the mentally defective people. But definition of mentally defective person offers immense assistance in determining what mental defect means for purpose of criminal responsibility. In R. v. Omoni (1949) 12 WACA 511, the court pointed out that the defect in mental power must not have been produced by the accused’s own default. In R. v. Aliceeriyamremu (1959) WRNLR 270, the accused killed her albino grand-daughter ascribing the act to the dictates of her confederates in witchcraft. Morgan J. held that even if she was afflicted with mental infirmity at the time she killed her grand-daughter, on the balance of probabilities, the infirmity was not natural but was induced by her deliberate worship of juju and /or witchcraft. Therefore the defence of insanity could not avail her. However, this self inducement rule introduced by the court, whose exact extent could obviously be difficult to determine, should, as Professor Okonkwo pointed out, be treated with caution. It appears that the self inducement rule was propounded by the court because of the use of the word “natural’ in qualifying mental infirmity in the first limb of section 28 Criminal Code In any case, the rule cannot extend to mental diseases for whether self-induced or not, it will be a defence. After establishing either a mental disease or natural mental infirmity, the defence must go on to show that by reason of the mental disease of infirmity the accused was deprived of any of the following capacities:A. Capacity To Understand What He Is DoingThere are no available cases to show the scope of the meaning of this phrase. The courts still have a duty at the appropriate time to give the phrase a judicial interpretation.B. Capacity To Know That He Ought Not To Do The Act Or Make The OmissionIn other words, under this heading the accused would have been deprived of the capacity to know that the act or omission in question was wrong. In R. v. Windle (1953) 2 KB 82, it was held that in law to say that something is wrong is to say that it is contrary to law. Thus, under this heading, it becomes a defence if the incapacity of the accused is to the extent that though he understands what he is doing, he does not know that it is contrary to law. This obviously creates an exception to the rule of “ignorantia legis neminem excusat.” Some writes have argued that “wrong” should be widely construed as to include both legal and moral wrongs. But it is submitted that considering the fluidity of morality as a concept, lawyers ought to be wary of an easy foray into its realms in finding answers to legal problems. However, in Stapleton v. R. (1952) 86 CLR, the Australian High Court, after considering all the English authorities on the issue, refused to follow R. v. Windle, (supra), and held that the correct test should be whether the accused could distinguish between good and evil and not merely distinguishing between legality and illegality. It has been suggested by some writers that Stapeton is a better law and ought to be embraced by our courts. Professor Okonkwo, apparently preferring a disjunctive construction of “or” in the phrase “wrong or contrary to law” argued that Stapleton is in line with section 227 Criminal Procedure Act . What is your view? What if the “or” is conjunctively construed?Capacity To Control His Actions In cases where the accused could understand what he was doing, or that it was wrong and/or contrary to law, there may still be a defence that he lacked the capacity to control his actions. Obviously this accommodates a plea of irresistible or uncontrollable impulse. Note, however, that it is difficult to distinguish between resistible and irresistible impulse. See R. v. Omoni (1949) 12 WACA 511, (supra). In Echem v. R. (1952) 14 WACA 158, the court allowed the defence of irresistible impulse on the ground that medical evidence showed that due to previous accidental injuries the accused was liable to attacks of mental disorder to the extent that sometimes even though he knew what he was doing, he could not control himself.Delusions Professor Okonkwo prefers to refer to the second limb of section 28 Criminal Code as dealing with non-insane delusion. Many have argued, however, that such a heading is not only inapt but can mislead on the ground that most minds are rooted in one form of insanity or the other, even though admittedly some delusions may not derive from insanity or a diseased mind.It is therefore recommended to understand the second limb as referring simply to “delusion” instead of “non-insane delusions” used by Okonkwo and “insane” or “partial delusion” used by others, e.g. Brett and Maclean.An illuminating distinction between the first and second limbs of section 28 Criminal Code, dealing with insanity and delusions respectively can be found in: Yusuf v. The State (1988) 7 SCNJ. In that case, the court stated that there is a distinction, though a thin one between the two paragraphs. Nnamani JSC opined that a person suffering from a delusion cannot be said to be a sane person and that perhaps it would be better to say that insanity encompasses delusion. He said that the difference between delusion and insanity at best lied in the degree of the mental illness. He referred to Arum v. The State (1970) 11 S.C. where Idigbe JSC said:“The first limb of section 28 Criminal Code deals with the defence of insanity and the second limb clearly relates to delusions (sometimes loosely – though not necessarily – the same referred to as insane delusion). Insanity is not sine Qua non to the experience of a delusion or hallucination. It is indeed not easy to distinguish delusion and insanity when these terms are used in their ordinary meaning but as far as section 28 Criminal Code is concerned, there is a clear distinction for the purposes of establishing a defence under either limb of the section.” Nnamani JSC while insisting that they are facets of mental illness conceded that one needs not be insane to have a delusion.Quare: If insanity is distinguished from delusions, how do you classify sleep walking, spasm, reflex actions, automatism. hallucinations, blackouts, etc?The salutary point of note, however, is that if delusion is established, under paragraph 2 of section 28 Criminal Code, the accused would still be criminally responsible, but “on the facts, as the delusion led him to think exist.” See Iwuanyanwu v. The State (1964) 1 All NLR 413. Here the appellant suffered from delusion which induced him to believe that the deceased would send evil spirits to kill him at night. After waylaying and killing the deceased, he was convicted of murder. This decision has been justified under section 28 paragraph 2 on the ground that even if as he deluded himself to believe it was true that appellant could send evil spirits to kill him, was the proper reaction or defence to kill the deceased?The killing could not be excused as in self-defence under section 286 Criminal Code? See Ihonre v. The State (supra), Yusuf v. The State (1988) 7 SCNJ.(supra), where it was stated that revenge is not a defence. But contrast the decision of WACA in Thamu Guyuk v. R (1933) 14 WACA 372, where the appellant, believing that the deceased had been following his wife around, and had said that he would take her away, killed the deceased. He was convicted of murder. The WACA having accepted that the appellant was mentally disordered and suffering from delusion at the time he killed, upheld the conviction on the ground that at the trial, he admitted that he knew he was doing wrong.Many, including Okonkwo had vigorously criticized this decision capable of confusing the different purports of paragraphs 1 and 2 of section 28 Criminal Code? However, such criticisms are justified because if the court found as a fact that the deceased followed the wife of the accused around, then the facts as he thought them to be could reduce murder to manslaughter on the ground of provocation.Note that under section 140 (1) Evidence Act, the burden of establishing a defence of insanity is on the accused. See R. v. Nasumu (1949) 6 WACA 154; R. v. Ashigifuwo (1948) 12 WACA. Under the penal code, Section 51 provides:“Nothing is an offence which is done by a person who, at the time of doing it by reason of unsoundness of mind is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. Clearly this section is worded differently from section 28 and the MacNaughten rules.”In Kure v. The State (1988) 2 SCNJ the Supreme Court stated that section 51 Penal Code? has a similar effect to section 28 Criminal Code? It appears that the Supreme Court has set a precedent that the courts should treat the sections as identical.But we must point out the difference in the use of phrases and words by both sections. The Criminal Code? talks of disease of the mind or natural mental infirmity while the penal code refers to “unsoundness of mind” following the Supreme Court’s observation in Kure v. The State (1988) 2 SCNJ it may be argued that the phrases refer to the same thing. The Penal Code also provided for uncontrollable impulse.Under both codes, the proof of insanity is by reference to the accused’s act before the offence or acts contemporaneous with the offence or a family history. See R. v. Inyang (1946) 12 WACA 5; Imo v. State, (supra), particularly p. 210; Kure v. The State (1988) 2 SCNJ , (supra). Note that where the defence of insanity is upheld, the accused would be acquitted but is ordered to be detained at the pleasure of the state governor.Automatism When someone acts in a state of unconsciousness, English Law may accommodate a defence of automatism. In Bratty v. A. G.N. Ireland (1961) 3 All ER automatism was defined to mean an unconscious involuntary action which does not result from a disease of the mind. Note that the term was not mentioned in our code, but it is rightly generally subsumed under the provisions of section 24 Criminal Code? i.e. it can be classified as an act performed independent of the exercise of the will of the accused person. For instance, the Supreme Court in Amayo v. The State (2001) 12 S.C. (Pt. 1)1 at 5 separated section 24 into two parts and held that the first part, dealing with act or omission occurring independent of the exercise of the will creates a defence of automatism whilst the second part relating the event occurring by accident creates the defence of accident. The court per Ayoola JSC adopting the definition in the Black’s Law Dictionary said that “Automatism is ... a behaviour performed in a state of mental unconsciousness or dissociation without full awareness. Term is applied to actions or conduct of an individual apparently occurring without will... Automatism may be asserted as a criminal defence to negate the requisite mental state of voluntariness for commission of a crime.”Intoxication Voluntary Intoxication per se is not a defence to a criminal charge. Section 29 (1) Criminal Code Under section 29 (2) (a) where the intoxication was caused by the negligence or malicious act of another and such intoxication made the person not to know that the act or omission was wrong or not t0 know what he was doing there is a defence. It is therefore clear from the subsection that intoxication can only be successfully pleaded as a defence where he shows that the intoxication was induced by the malicious or negligent act of another. Therefore, it follows that an accidental or mistaken intoxication may not suffice as a defence for purpose of the above subsection. The accused only needs to prove the lack of capacities mentioned in section 29 (1) (a).Under section 29 (2) (b) there seems to be a defence where the intoxication whether involuntary (induced) or voluntary made the accused to be temporarily insane or otherwise at the time of committing the offence. In Imo v. State (1991) 9 NWLR. The court appears to (erroneously in our view) have lumped sections 29 (2) (a) and (b) together to establish the defence of intoxication. In that case, at p. 18, the court apparently held that where the intoxication was either by negligence or malice of another, the defence will not avail the accused unless the intoxication led the accused into temporary insanity or otherwise. An accused may therefore introduce evidence of intoxication or drunkenness - Imo v. State p. 21. In Beard v. DPP (supra) at P. 500 the court said:“Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.”Therefore, it appears that whether intoxication will be sufficient to negate the required intent, will be a question of fact. In R. v. Owarey, (supra), the accused, who was apparently in a drunken state, shot and killed a man who he had quarreled with. From the evidence, it could not be said that this drunkenness prevented him from forming an intent. Contrast the Ghanaian case of Kofi Mensah v. R. (1990) 14 WACA.It is noteworthy that if the prosecution proves the required intent, it will be no defence that had the accused been sober, he would not have formed that intent. There is also no defence for a man who had formed an intent to execute it, intoxicates himself to a point that he does not know what he is doing to give himself Dutch courage to act. See A. G. of Ireland v. Gallagher (1963) AC. The position under the penal code, however, appears to be unique and adopted to suit the peculiar religious circumstances of the North. Section 52 Penal Code? provides inter alia, that–Nothing is an offence that is done by a person intoxicated by something administered to him without his knowledge or against his will and which caused him not to know that he was either doing wrong or what was contrary to law or the nature and quality of his act.This provision of the penal code unlike the criminal code merely requires that the intoxication be involuntarily caused for it to be a defence. The penal code does not like the criminal code require that the intoxication be caused by malice or negligence.It can also be argued with some degree of certainty that self intoxication or accidental intoxication is not protected under the penal code. Unlike the criminal code also, the penal code does not categorically provide that the intoxication must have been the act of another. Note must however, be taken of section 44 penal code, which provides that an intoxicated person is presumed to have the same knowledge as if has not been intoxicated. This provision is curious. It seems to negate specific intent or what in English Law is called specific mens rea. But this may not really be the case. At best, it could be implied that the provision does no more than to state that intoxication would not be a defence which is a rebuttable presumption and which can be rebutted by showing that the accused did not form the required intent.Corporate Criminal ResponsibilityUnder the common law, it was virtually impossible for a company to incur criminal liability, especially with offence requiring mens rea. With the passage of time, however, English criminal law came to recognize corporate criminal liability against companies even for offences requiring mens rea. See R. v. L C. R. Haulage (1944) 2 KB; Moore v. Bresler (1944) 2 All ER.Under the general law, corporations are juristic persons.Statutes, however, may expressly create corporate criminal liability, e.g. for fraudulent trading. The Companies and Allied Matters Act , 1990 as amended has a whole lot of such provisions. e. g. section 65 Companies and Allied Matters Act , 1990 provides for civil and criminal liability as a natural person. The penal code is definite under its section 5(1) in its definition of the word person. A person is defined to include a company.It was suggested that some crimes by implication necessarily excludes companies. See R. v. Opara (1943) 9 WACA 70. Also, where the minimum punishment for the offence is a term of imprisonment, it necessarily follows that a company could not be liable, for it could not be imprisoned. It is worthy of note, however, that very few offences impose a term of imprisonment as the minimum punishment. It was a difficult problem to fix the intention or mental state (mens rea) requirement of offences committed by companies. In H. L. Bolton (Engineering) Company Ltd. v. T. J. Graham & Sons Ltd (1957) 1 QB 159. The problem of fixing the “Will” or Mental State of an artificial personality which a company is, was approached by Denning L. J. (as he then was) thus -“A company may in many ways be likened to a human body. It has a brain and a nerve center which controls what it does. It also has hands which hold the tools and act in accordance with directions from the center. Some of the people in the company are mere servants and agents and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and it is treated by the law as such.”See also Tesco Supermarkets Ltd v. Natras (1972) A. C. 153 where it was held that the acts of a store manager of a company that operates a chain of supermarkets cannot be said to be the act of the company.Following the views of Denning, L.J. (as he then was) and other academic and juristic opinions, it was clear that mens rea or state of mind was no longer an impediment to corporate criminal liability. See A. G. Eastern Region v. Amalgamated Press (1956 - 57) ERLR 12, where Ainley, C. J. stated inter alia, “I make no doubt that a corporation can have knowledge of the falsity or otherwise of that which is published in a newspaper.” See too Mandilas & Karaberis Ltd. v. IGP (1958) 3 FSC 20.After solving the problem of mental state of mens rea, it appears that the only obstacle in corporate criminal liability is imposing a commensurate punishment especially where only imprisonment is provided for. Ainley C. J. pointed out in A. G. v. Amalgamated Press - “that a corporate cannot be charged with an offence, the only punishment for which is imprisonment. The practice is for courts to impose fines in lieu of imprisonment even in cases where the court would have imposed imprisonment as a deterrence.” In R. v. Service Press Ltd. (1952) 20 NLR 96 - De Commando SPJ said “The contemnor being a limited company, I cannot have recourse to imprisonment which I consider would have been a salutary lesson.” He imposed a fine of N150.00. Under the Penal Code, the law on corporate criminal liability seems as uncertain as under the criminal code. However, section 5 (1) P. Code seems to have created a general rule of corporate criminal liability. Note also that the liability of a corporation for the acts of its agents is corporate liability as distinct from vicarious liability.Self Defence Where this defence is applicable it negatives the existence of an offence so that where a person kills another excused in defence of himself such killing is altogether. Section 33(1) of the 1999 Constitution States that no person shall be deprived intentionally of his life. Save in executing the sentence of a court (in case of capital offence). But by virtue of section 33(2) (a), one can intentionally take the life of another if such killing is reasonably justifiable for the defence of any person from unlawful violence or for the defence of property. This constitutional provision has been embodied in the two codes. Section 32 (3) Criminal Code , provide that a person is not criminally responsible for an act if the act is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence. Section 59 Penal Code? provides that nothing is an offence which is done in the lawful exercise of the right of private defence.To make out the defence, the following must be established i.e.(a)There must be an actual and unlawful violence threatened to the accused or to another in his presence.(b)The accused’s act must be to resist that actual and unlawful violent threat.(c)The accused’s act must be reasonably necessary for the purpose of resisting the unlawful violence threat. See further consideration of the defence in relation to assault and homicide.Provocation Section 318 Criminal Code? and 222 (1) Penal Code? do not contain full definition of provocation but they contain conditions of its application as a defence, Provocation is however defined for the purpose of assault in section 283 Criminal Code? That section provides that any wrongful act or insult of such a nature that if done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care or in a conjugal, parental filial or fraternal relation or in the relation of master or servants is sufficient to deprive him of the power of self control and to induce him to assault the person by whom the act or insult is done or offered. In Obaji v. The State (1965) 1 All NLR 269. The Supreme Court decided that section 283 also defines provocation for the purpose of section 318 Criminal Code? and that the two sections must be read together. At common law, provocation is defined as some or series of acts, done by the dead man to the accused, which would cause in any reasonable person and actually caused in the accused, a sudden and temporary loss of control rendering the accused so subject to passion as to make him or her for the moment not master of his mind - R. v. Duffy (1949) 1 All ER 932 Per Goddard C. J.Elements Of Provocation: The following conditions must be satisfied before a plea of provocation will succeed - Karimu v. The State (1999) 7 NWLR (Pt. 402)579. 1.The provocation must be such as to cause a reasonable person to lose his self-control. Here, the test is based upon the test of a reasonable man. However a reasonable man in this context has been held to mean reasonable man of the accused persons standing in life and standard of civilization: R. v Adekanmi (1944) 17 NLR 99, where the court expressed the view that the passion of the illiterate and primitive peasant are far more readily aroused than those of a civilized and enlightened class; See also Ihuebeka v. The State (2000) 4 SC (Pt. 1) 203 at 214.2.The unlawful act of the accused must be done in the heat of passion caused by sudden provocation and before there is time for the passion to cool. In Ihuebeka v. The State (2000) 4 SC (Pt. 1) 203 at 214. (supra) the deceased taunted and ridiculed the accused for his inability to assist the family due to his loss of job. The accused did not attack the deceased and his wife immediately, rather he attacked the wife at home and allowed the deceased to go to the farm, went to the farm to attack the deceased. It was held that the act was not done in the heat of passion and the defence failed. See also R. v. Green (1955) 15 WACA 73. 3.Provocation by one person is no excuse for killing another person who does not offer any provocation to the accused; R. v. Simpson (1915) 25 COX 269; followed in R. v. Ebok (1950) 19 NLR 84.Note that in inter group or inter - clan fights, provocation given by a member of one group may be sufficient provocation for the killing of another member of his own group: Dummemi v. R. (1955)15 WACA 75; R. v. Ekpo (1938) 4 WACA 110.4.The mode of resentment must bear a reasonable relationship to the provocation offered. The rule of proportionality though not specifically provided for in the criminal code has been adopted by Nigerian courts. The courts take into account the nature of the instrument with which the act was done; Mancini v. D. P P (1942) AC 1. In Amako v. The State (1995) 6 NWLR (Pt. 399) 11, it was held that throwing of sticks and stones at each other does not justify the use of a matchet by the accused; see also Akpan v. The State; (1994) 9 NWLR (Pt. 368) 347; Kwasi Twumasi v. The State (1992) 3 NWLR (Pt. 227) 54.5.The killing must have involved assault. This is essential if the meaning of provocation in section 318 Criminal Code? as contained in section 283 Criminal Code? which refers to an offence of which assault is an element. See section 252 Criminal Code? for the definition of assault.Words As Provocation At common law words alone could not amount to provocation. This rule was modified in Holmes v. D. P. P (1946) AC 588; where it was held that words alone could not amount to provocation “save in circumstances of a most extreme and exceptional character under the Criminal Code? and P.C. words alone can be held to be sufficient provocation. R. v. Adekanmi (supra) section 283 Criminal Code? which defines provocation for the purpose of Section 318 Criminal Code? specifically provides that an insult may amount to provocation. Note that an act authorized by law cannot amount to provocation, e. g. a lawful arrest by a private person cannot constitute provocation – The State v. Nweke (1965) NMLR 154.?CHAPTER 5Parties To An Offence Another problem of criminal responsibility lies in fixing liability for an act or acts participated in by several persons. However, when persons are to be indicted as participes criminis, the criminal law has to solve the further problem of determining each individual’s degree of involvement and the extent of their criminal liabilities. An insight into the type of problem faced by the criminal law under this heading can be seen from the following hypothetical case. Yemi tells Okeke and Hassan that Opara, a bank manager, will withdraw the sum of N1 million and that he will deposit it in a safe under his bed in his bedroom at No. 1 Okoya Street, Eko Bridge. Akpan, knowing the intention of Yemi, Hassan and Okeke to burgle Opara’s house, lends them a rope to tie up the night guards. Eke drives Yemi, Okeke and Hassan to the house of Opara at night though he was not told of their purpose he was told to wait to drive them back. Bola saw them proceeding in the direction of Opara’s house with guns, machetes and other housebreaking implements. He followed them and hid in the shadows while they were breaking into the house but he did nothing to prevent it. Okeke stands guard while Hassan actually robs the safe. Hassan also uses the rope to strangle a guard who stumbled into him while he was robbing the safe. Ajayi, knowing of the burglary and not of the murder distracts a policeman coming to the scene so that Okeke and Hassan escape and Madam Iyabo hides them from the law. There are various degrees of participation in respect of the various parties mentioned above. Chapter 2 of the Criminal Code provides liability for two classes of parties to an offence to wit:(1) Principal offenders and(2) Abettors after the fact. Under chapter 5 of the penal code, perhaps following the distinction under English Law, the provisions distinguish offences and abettors.Principal OffendersProviding for liability for acts done by several persons in furtherance of a common intention, section 79 of the penal code of Northern Nigeria provides: “when a criminal act is done(1) by several persons (ii) in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” See also section 80 Penal Code? Also providing for liability for co-operation in several acts constituting an offence. Section 81 Northern Nigerian penal code provides“When an offence is committed by means of several acts, whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person commits that offence.” Section 7 of the criminal code provides that any person found to be a principal, is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it. Contrast with the offence of rape. Therefore as provided by section 7 Criminal Code , the following four classes of persons are principal offenders:(a)Every person who actually does the act or makes the omission which constitutes the offence.This category refers to a person who is actually the author of the act or actus reus or the role actor who caused the act in question as principal offender.(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.(c)Every person who aids another person in committing the offence(d)Any person who counsels or procures any other person to commit the offence. However, for clarity and convenience the two categories in 7 (b) and (c) are normally grouped together. Section 7 (b) applies to where the act of assisting the offender occurred before the commission of the offence while7 (c) refers to where the assistance was simultaneous with the commission of the offence.Under section 7 (b) the question is whether it must be proved that the act or omission actually enabled or aided the commission of the offence or whether liability would still be imposed when an act is done with the purpose of enabling or aiding or which could enable or aid the commission of an offence. E.g., if X, a manager in a bank, leaves the back door of their bank open to enable Y, his robber friend, to gain access and rob the bank but instead Y breaks into the bank via the front door, X had clearly done an act for the purpose of enabling or aiding Y to commit a crime, is X still liable despite the fact that his act did not actually aid Y?It is implied under section 7 (b) that all that is required is that the person would do an act for the purpose of enabling the commission of an offence and it would be immaterial whether the act did aid or enable the commission of the offence or not.We think the more logical approach is not to treat section 7 (b) in isolation of 7 (c). If it is done, section 7 (b) might result in absurdities. This is because an act done as in the hypothetical example above which did not aid or enable the commission of the offence might not even be discovered and if it is discovered could it be treated as an intended or incomplete act because it came to no use.See Enweonye v. R. (1955) 15 WACA 1 where it was held that a man could not be liable under 7 (C) if there is no clear evidence that he did something to facilitate the commission of the crime. The case of rape is peculiar in determining when the act of assistance was given for purposes of liability as a principal offender. The act of rape is complete on penetration. Will the assistance given to the offender while the intercourse is still on but after penetration had been achieved give rise to liability as a principal offender or as an accessory after the fact?In R. v. Mayberry (1973) QD. R 211. The court held X liable as a party to an offence of rape after he had prevented the victim’s friend from going to her rescue when she screamed as a result of pain on penetration. A dissenting judgment, however, stated that so far as the assistance was given after penetration and therefore after the offence had been committed X ought not to be liable “as a principal offender. See R. v. Johnson (1973) QD. R on stealing.NOTE that mere presence at the scene of a crime is not enough to bring any person within the ambit of section 7 Criminal Code? unless the presence in anyway aided or facilitated the offence. In Akanni v. R. (1959) WRNLR, the court held that members of a crowd who stood by and watched a house burning, knowing that an old woman was locked inside it “behaved disgracefully, but that does not bring them within the provision of section 7.” In Enweonye v. R. (1955) 15 WACA 1. (supra), the court said “It was not proved that the third appellant held some position of rank or influence, which in itself might be held to be direct encouragement. In the absence of such proof, it seems to us, that his presence in the bank at the commission cannot amount to intentional aid.” Iyaro v. The State (1988) 2 SCNJ 102. Thus, if the presence is for the purpose of facilitating crime then the accused will be liable. Note that section 7 can only apply where an offence had been committed. This also means that where several persons committed an offence and only the party who aided them is caught, he would be liable because he is a principal under section 7.However, if all the parties to a particular offence are caught and charged, if some are acquitted, a problem might arise under section 7. In R. v. Okagbue (1958) 3 FSC, three men were charged with office breaking, two were found not guilty, but the third was convicted of aiding them. Following the English Case of R. v. Rowley (1984) 1 All ER, the appeal against conviction was allowed. In Rowley, the court said “it would be absurd to say that he assisted persons whom he knew had committed a felony when they had not in fact committed a felony.”In Iyaro v. The State (1988) 2 SCNJ 102., (supra), it seemed, that the Supreme Court had overruled R. v. Okagbue (1958) 3 FSC for the Supreme Court stated that all that is required is proof that the offence had actually been committed and that it would not be a condition precedent for conviction for, aiding, that the person or persons who did the act must be convicted.For section 7(d), see Idiong v. R. (1950) 13 WACA under this subsection same interpretation applies as to section 7(b) and (c). The striking difference is that mere words might suffice to ground liability. The words amounting to counselling or procuring must however, involve some positive act of encouragement to those who committed the offence.In R. v. Idika (1959) 4 FSC, it was held that mere permission to commit an offence is not enough. In R. v. Ukpe (1938) 4 WACA, a member of the accused person’s village was killed in a bicycle accident by a man from another village. The chief summoned a meeting of all the men of the village and told them to go and kill any man from the other village and bring him his head. They all agreed. The accused person admitted being present at the meeting. The trial judge held that he encouraged the subsequent murder, WACA allowed his appeal on the ground that -“He was not the person who directed that an Okon man should be killed, but was one of those to whom the order was given.” The above case is difficulty to distinguish from R. v. Idika (1959) 4 FSC (supra). In R. v. Idika (1959) 4 FSC the court had said “if members of a society meet and being faced with orders to kill a particular man, they decide unanimously to obey these orders, each person at the meeting encourages his fellow man to kill the victim”In R. v. Ukpe (1938) 4 WACA, , the court adopted the view that the mere expression of intention to commit an offence was not enough excuse because the person may be too irresolute when the opportunity comes to carry it out.Professor Okonkwo sees the distinction between the two cases in the fact that while the agreement in R. v. Ukpe (1938) 4 WACA, was futuristic and uncertain in nature, the killing in Idika followed immediately after the agreement. Note that it is immaterial for liability under section 7(d) that the person who counselled or procured the commission of the offence was not present when or where the offence was committed. Although, the plan on which the accused is being held liable must be concrete and in details. See R. v. Idika (1959) 4 FSC (supra).Note also that section 24 applies to section 7. Therefore the mental element (mens rea) requirement must be proved before liability could attach.Under 7(b), it is logical that the act of assistance must have been done for the purpose of committing the particular offence charged and the accused must have intended to aid the said offence. It is not clear, however, whether there will be liability where a person aids another for a specific offence but another offence not contemplated by him is committed. It may be argued that he ought to be liable. See, however, R. v. Bainbridge (1959) 43 Cr. APP REP.Under section 7(d) once a person counsels and procures, he continues to be liable unless and until he expressly revokes or countermands the previous counselling or procurement. See Obodo v. R. (Pt. 954) 4 FSC;. Okafor v. The State (1967) NMLR.Under the Penal Code, chapter 5 uses the word “abetment” section 83 P.C., in defining the term. Abetment it said means “when a person either instigates another person, engages with one or more persons in conspiracy, intentionally aids or facilitates the illegal act.”Under section 87 P.C., where the act abetted is different from the act that was committed but it was a probable consequence of the act abetted the abettor would be liable as a principal. Section 89 makes the abettor also liable even if the effect caused by the act is different from the one he intended, as long as he knew the act was likely to cause that effect. Under section 90 Penal Code? , if the abettor was also present at the scene of crime, he is deemed to have committed the offence.It is clear that the penal code envisages a wider application and covers conspiracies. Note that conspiracies were dealt with under section 516 - 518 Criminal Code .Common IntentionSection 8 Criminal Code? creates liabilities for unwilled acts. It can therefore be said to have excluded section 24 Criminal Code? which widely applies against such liability. See Brennan v. R. (1936) 55 CLR 253. Alarape v State? [2001] F.W.L.R. (PT. 41) 1873In Garba v. Hadejia Na (1961) NRNLR, two men set out to rob a girl coming back from the market. Both carried sticks. One struck her from behind and shielded. The FSC held both men liable because there was no doubt they intended that actual violence should be used and the resultant death was a highly probable consequence of such violence. See too Okosun v. A. G. Bendel State (1985) 3 NWLR Pt. 12.Therefore, the basis of liability under section 8 is not participation in the planning and or execution of the illegal act, but rather that the prosecution of the said act would probably result in the consequence. See Atanyi v. R. (1995) 15 WACA where the court seemed to have laid a general rule that once there is a common design to commit robbery with violence between two persons, both would be liable for the resultant murder whether the other party had consented to the degree of violence or not. Okonkwo and Naish disapproved of the approach adopted in the above case.In Akinkunmi v. The State (1987) 1 NWLR Pt. 52, The Supreme Court found that the accused persons had a common intention to steal goat. They did steal the goat, however, a subsequent violent escape by one of them when the police accosted them led to the death of the policeman. In the words of the Supreme Court, the murder could not be said to be a probable consequence of stealing the goats.Other requirements which must be justified before an accused will be liable under section 8 include:There must be a common intention to prosecute an unlawful purpose. In Offor v. R. (supra), it was stated that proof of a common intention is a condition precedent and that proof of a common intention can be inferred from the circumstances disclosed in evidence. There need not to be an express agreement.In Adekunle v. The State (1989) 2 NWLR Pt. 123, the Supreme Court drew a distinction between common object and common intention. The court held that in the instant case, there was a common object to expel the deceased from the compound, though the accused of course had a common intention with those who joined him in stoning the deceased to death.Many factors may contribute in proving or disproving common intention: See Akinkunmi v. The State (1987) 1 NWLR Pt. 52,, (supra).In Alagba v. R. (1950) 17 NLR, a common design to make an attack of a kind likely to endanger human life resulting in death could be inferred from the fact that the accused persons were in one canoe shouting a common tribal war cry.In Atanyi v. R. (1995) 15 WACA. (supra), it was held that if a man goes out to rob with another he knew to be armed “in circumstances that it could be inferred that they intend to use force if necessary, they would be said to have a common intention. Contrast R. v. Onuegbe (1957) 2 FSC. Note that inference of a common intention must be an irresistible and inescapable one.In R. v. Bada, (supra) WACA felt that from the facts, a common intention was not an inescapable one.In Okosun v. A. G. Bendel State (1985) 3 NWLR Pt. 12., (supra), a common intention was inferable. In cases involving a mob, despite the fact that there may not be express agreement, the circumstance may be such as to raise a presumption of common intention.In Amos v. R. (1959) 4 FSC, the Federal Supreme Court stated that it was clear from the facts that the intention of the crowd, whoever composed it, was to kill. Contrast Akanni v. R. (supra).Note also that even where a common intention is said to exist, the precise nature and extent of the intention between the parties must be established. See Ofor v. R. (1955) 15 WACA. See generally Adekunle v. The State, (supra); Akinkunmi v. The State. The phrase unlawful purpose must be seen to mean a purpose to commit a crime or to do an illegal act.Also the common intention must be to prosecute an unlawful purpose in conjunction with one another. In R. v. Ukpe WACA held that section 8 will only apply where there is an agreement to act jointly and not severally. In R. v. Benson, the Queensland approach seemed to have been stated that it would not be necessary where there is an agreement to act jointly that both parties be present when the act is done.Note also that the offence must have been committed in the prosecution of the agreed purpose. Where a party goes beyond the said purpose, the other party would not be liable for his act. See Imoke Onyikoro v. R. (1959) NRNLR. See also Akinkunmi v. The State, (supra) at 615.Also, for liability to ground under common intention, an offence must have been committed in prosecution of the intended purposes. If that offence is not the intended purpose, but a probable consequence of same, it would be immaterial which accused did what or how the offence was actually committed. See and contrast section 79 penal code.Accessory After The FactSection 10 Criminal Code An accessory after the fact is one who receives or assists another who to his knowledge is guilty of an offence so as to enable him to escape punishment. Whilst the principal offender is liable to the full punishment for the actual offence, the punishment for accessory after the fact is 2 years for felony and 1/2 of the punishment for the offence if it is a simple offence s. 519 - 512 Criminal Code? But see section 322 comparisons for accessory after the fact of murder and treason. The duration of such reception or assistance is immaterial provided it was done to enable another escape punishment. Assistance may be by positive act or deliberate omission. See R. v. Ewonye (1955) 15 WACA 1; R. v. Ukpe (1938) 4 WACA 41; Majara v. R. (1954) AC 235. The mental element required is knowledge of the person assisted plus an intention to facilitate his escape from punishment.Note the limitation to the application of the section i.e.(a)Husband and wife are not guilty for assisting each other. But this is limit to husband and wife of Christian marriage.(b) The woman is not liable for receiving or assisting her husband’s confederates if done in his presence or by his authority. But a husband is an accessory if he aids the escape of his wife’s confederates.Liability For Negligence To Prevent A Felony Section 515 Criminal Code? provides that anyone who knowing that a person designs to commit or is committing a felony fails to use reasonable means to prevent its commission or completion is guilty of a misdemeanor and is liable to imprisonment for 2 years. The question is “when does a person design? In Obimselu v. COP (1958) 3 FSC 40 design was interpreted to mean a settled intention to commit an offence, that the best evidence of that intention would be that a felony was actually committed. In that case the appellant permitted his girlfriend to use his room for an abortion operation. He was convicted under section 515 Criminal Code ?CHAPTER 6PRELIMINARY/INCHOATE OFFENCES1.Attempts The general focus of the criminal law is not only to punish crimes, but also to prevent or discourage persons from embarking on criminal designs and adventures. The law of attempts was therefore developed to cover a situation where the machinery of justice will not be able to proceed against a man whom it knows to be executing a criminal design simply because he is yet to fully execute the offence. Section 4 Criminal Code? makes it an offence to attempt to commit any offence. To achieve a conviction for attempt it must be proved that the accused intended to commit the offence he is alleged to have attempted. In R. v. Anofi Seidu (1960) WNLR 32, it was held that the accused was not guilty of attempted rape because he did not intend sexual penetration. In R. v. Ofong (1936) 3 WACA 83, the accused entered a woman’s room uninvited, took off his clothes, expresses a desire for sexual intercourse with her and actually caught hold of her. The court held that these acts fell short of an attempt to commit rape. That they are merely acts which indicate that the accused wanted to have and had made preparation to have connection with the complainant without her consent and the lack of consent is the gist of rape. It is therefore clear that to be guilty of attempt the accused must be shown to intend to commit the substantive offence. Note that the offence of attempt must be committed negligently or by strict liability or by mere recklessness.The Actus Reus of AttemptSection 4 Criminal Code? indicates what acts will bring a person within the purview of attempts. These are:(a)The accused must have begun to put his intention into execution by means adapted to its fulfillment.(b)That he had not fulfilled his intention to such an extent as to commit the offence.(c)That his intention had been manifested by some overt acts. From the above, once the accused had arrived at his criminal destination, the law of attempt ceases. In R .v. Buton (1900) 2 QB 975, the accused had entered an athletics competition falsely representing in his entry form that he had never won a race before. He won the race. He never had the chance to collect the prize. He was held guilty of attempt to obtain the prize by false pretences. In R. v. Robinson (1915) 2 KB, 324, the accused, for the purpose of collecting insurance money, tied himself and pretended that he had been burgled.He was arrested before he could make any claims. The court held that he was not guilty of attempt. See also Comer v. Bloomfield (1970) 35 Cr. App. Rep. DPP v. Stonehouse (1977) 2 All ER.The above English cases appear difficult to reconcile. In Comer, the accused wrote his insurer and falsely reported the theft of his van and enquired whether he could claim. The court said that his acts fell short of attempt.In DPP v. Stonehouse (1977) 2 All ER., the court opined that if the accused had done the last act, depending on himself toward accomplishing his purpose, then his act is proximate enough to constitute attempt.Although none of the above cases seems to have laid down a general theory around which the liability for attempts would revolve, it is noteworthy that in R. v. Ukanjo O. (1933) NNLR 23, the Nigerian courts seemed to have imported the distinction between preparation and attempt The court relied on DPP v. Stonehouse (1977) 2 All ER..Some general rules have, however, been proposed as bases for conviction in attempts.In R. v. Eagleton (1885) 6 box , Baron Parke proposed what many had recognized as the test thus:“Acts remotely connected with/leading to the commission of the offence are not to be considered as attempts to commit it but acts immediately connected with it are”Our court approved of the test in Orija v. IGP (1957) NRNLR 185. However, it is easy to find out that the test poses as many as if not more problems than the code provision on attempts in determining what acts are adapted to the fulfillments of the intention of the accused.Learned author, Mr. Turner, suggested an alternative test. This is referred to as equivocality theory. It states thus: “The prosecution must prove that the steps taken by the accused must have reached a point when they indicate beyond reasonable doubts what was the end to which they were directed.” By Turner’s postulation, it would mean that if the acts of the accused were to be put on a motion picture being watched by an audience, the point at which the audience can say clearly this is the end to which the act were directed would be the point at which attempt is present.If there were still more than one reasonable possible end, then at that point, there would be no attempt.Turner’s theory was, however, criticized as being unduly narrow because a man by one act may intend several results. Turner himself later modified the test by saying that it would be sufficient if the accused’s conduct shows prima facie his intention to commit the offence which he is charged with attempting. It seems that this theory is logically the meaning of attempt under section 4 Criminal Code? But none of the various theories had been consistently applied in Nigeria. In The State v. Onosaimoni (1982) 1 ANLR, the High Court of Bendel seemed to have applied both the equivocality test and the proximity theory. The court relied on R v. Linneker (1906)2 KB and DPP v. Stonehouse (1977) 2 All ER. (supra). Although there is no available recent supreme court decision establishing in the proper theory to be applied in determining when the acts of the accused would constitute attempt, it is submitted that the proper interpretation for section 4 would be to divide it up thus:(a) noting the fact that the code makes distinction between “means adapted to the fulfillment of the intention and(b) the overt acts which manifest the intentionBy this, it would be clear that the overt act that manifests the intention may well be different from the means adapted to its fulfillment. This approach may have covered the distinction envisaged under English Law between preparation and attempt. Our Courts do not seem to have appreciated the distinction above. See Orija v. IGP (supra).In The State v. Ibrahim (1982) 1 NLR, the Lagos High Court adopted the same curious approach of applying the doctrine in the Eagleton case concurrently with the equivocality test. See:(1)Awosika v. IGP (1968) 2 ANLR 336(2)R v. Ogumogu (1944) 10 WACA 220(3)UDU v. IGP (1964) NMLR 116Attempt and the problem of impossibilityEnglish criminal law recognized the limitation on the law of attempt which could be posed by the doctrine of impossibility. The general law on “Attempt” is that an offence would be committed all the same even if circumstances unknown to the accused existence which rendered it impossible for him to commit the actual offence. Thus man is guilty of attempting to steal if he put his hand into an empty pocket intending to steal from it R. v. Ring (1892) 8 T.L.R. 326. Also if he puts insufficient poison intending to kill, he will be guilty of attempted murder: R. v. White (1910) 2 K. B.124. Earlier on, English law had recognized a limitation in the liability for attempting the impossible.In cases where the impossibility was such that the accused could not be said to be executing his intention at all, there would be no liability. Thus, there was a distinction between insufficiency of means and cases were certain essential elements of the crime were absent, e.g. a burglar who tried to break into a house that has an iron gate with sticks may still be liable for attempting the offence. But a person may not be liable if intending to kill a man whom he supposed to be sleeping, stabs him not knowing that he was stabbing a corpse.In fact, the position of English Law was that there cannot be an attempt to commit a crime in respect of a missing object, i.e. a person or property that was absent from the scene.Professor Glanville Williams in a commonwealth law journal article titled “The Lords and Impossible Attempts” published in 1986 pointed out that an absurdity existed in the position of English Law on this subject. His example was that if a man tried to shoot and kill someone who was slightly out of range, he would be guilty of attempted murder because this was a case of insufficient means but if the victim had been so far as to be said to have ceased to exist then, there would be no attempt even though he believed that he was near enough and that he could be killed.The question then would be where to draw the line between “insufficient means” and a “missing object” Professor Williams argued that the law seems to have drawn not only an arbitrary, but also an illegal line.Prof. H.L. Hart had earlier pointed out that the notion of attempt does not always require that the object in question must exist. His view was that the only requirement would be that the offender believed that it did or might exist.In Rogers Smith (1975) A.C. The House of Lord followed the authorities that had recognized and applied the impossibility rule in the laws of attempts.Following academic and juristic criticisms, the parliament enacted The Criminal Attempt Act, 1981 to overrule the Rogers Smith Case and all authorities along that line which upheld impossibility as a defence to the offence of attempt. But in Anderton v. Ryan (1985) A.C. The House of Lords not only disregarded all opinions that had shown that the impossibility rule was bad law but went ahead to interpret the Criminal Attempt Act 1981 in a way as to have subverted the intent of the Act-the abolition of the impossibility rule. They took no cognizance of the Mischief rule.Prof. Glanville Williams flayed this decision in no uncertain terms when he said that it “was the worst decision on a point of law by any English court in this century” In Shivpuri (1987) A. C. 1, the House of Lords took the opportunity to correct its error when it upheld the court of appeal decision that the accused was guilty of attempting to deal with heroine despite the fact that the substance which he had believed to be heroine was in fact harmless powder.In Nigeria, the position is emphatic. English Law just arrived at the position already adopted by section 4 Criminal Code? The last paragraphs of section 4 Criminal Code? provided that it is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence; Contrast R. v. Odo (1935) 4 WACA. Note the definition between factual impossibility and legal impossibility. While factual impossibility is no definite legal impossibility is. Note also that under section 4, the same facts may prove an offence and constitute an attempt to commit another offence. Also it would make no difference that the accused called off further prosecution of his intention of his own motion.The penal code does not have an equivalent provision to section 4 Criminal Code . Section 95 Penal Code only provides for the punishment for attempting to commit an offence.In Sanni v. The State (1993) NWLR Pt. 285, the court of appeal, while stating that the penal code does not define Attempts, adopted the definition in Stephen’s Digestion of Criminal Law that: “An attempt to commit a crime is such an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted.2. ConspiracySee the general provisions under s. 516 to 518 Criminal Code? and 97 and 98 of the Penal Code? The codes have not defined conspiracy. The Nigerian Courts have adopted the common law definition In Okosun v. A. G., Bendel State (1985) 11 S. C. 194 and Majekodunmi v. R (1952) 14 WACA 64 the courts adopted the well-known definition of Wills J. in Mulcahy v. R (1868) LR 34, l 306 at 317 thus: “A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as designs rest in intention only, it is indictable. When two agree to carry it into effect, the very plot is an act in itself.. punishable if for a criminal object or for the use of criminal means.” Knowledge of the factual circumstances which render the object of the agreement unlawful is an essential element of the crime of conspiracy for persons can hardly be said to “agree” when one of them is in ignorance of essential facts.Intent that the unlawful object be achieved as another essential element of the crime of conspiracy. Thus, there is no conspiracy where one person pretends to enter into an agreement in order to build up incriminating evidence against the other- The State v. Otu (1964) NMLR 113. Note that there is no need of actually consummating the intended offence. All that is required is an agreement to commit it – Erim v. The State (1994) 6 SCNJ 104 at 115. It was held that it is not necessary in order to complete the offence that anything should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity or may be prevented or may fail.Nevertheless, the crime was completed when they agreed. Note also that unlike attempts, conspiracy does not merge with the substantive offence so that conspirators who have successfully carried out their agreement may be charged with both the crime and conspiracy Erim v. The State (1994) 6 SCNJ 104 at 115 (supra)Proof of conspiracy is generally a matter of inference from the evidence. It is not necessary that there should be direct communication between each conspirator and every other but the criminal designs alleged must be common to all. Indeed, one conspirator maybe in one town and the other in another town and they may never have seen each other but there would be acts on both sides which would lead the Court to the interference: Erim v. The State (1994) 6 SCNJ 104 at 115 (supra) at 116-117.In R v. Campbell (1993) ST. R. QD. 123 Blair C. J. said, “Such agreements may be made in various ways. There may be one person, to adopt the Metaphor of Counsel round whom the rest revolve. The Metaphor is the metaphor of the center of a circle and the circumference. There may be a conspiracy of another kind, where the metaphor would be rather that of a chain, A communicates with B, B with C, C with D and so on to the end of the list of conspirators.” See Adebayo v. The State (1987) 2 NWLR (PT 57) 468.An Unlawful PurposeS. 518 Criminal Code? states a number of purposes which render an agreement a conspiracy viz: to prevent or defeat the execution or enforcement of any written law; to prevent or obstruct the free and lawful disposition of any property by the owner thereof for its fair value; to injure any person in his trade or profession etc. S. 518 (6) covers generally all agreements to commit any offence.It must be shown that what was agreed to be done constitute an offence or crime in law; Otegheri v. I.G.P (1957) WRNLR where it was held that there was no conspiracy because what the accused agreed to do did not disclose any offence.A Lawful Purpose By Unlawful Means -S 518(7) Criminal Code This include using fraud or false pretences to obtain lawful purpose R. v. Brailsford (1905) 2 K.B. 730, held to be conspiracy to make an agreement to obtain a passport by false representation R v. Bassey (1931) 22. A. R. lbo, held to be conspiracy to gain entry to an inn of court by means of a forged certificate.Parties To Conspiracy Since the essence of conspiracy is agreement, it follows that there must be at least two parties to be involved. The fact that one of the parties to the agreement is acquitted does not mean that the other parties cannot be convicted of conspiracy. This will depend on the reason for the acquittal. Note that a person may be charged and convicted of conspiracy for committing a crime of which he could not, if he stood alone, be convicted – ?Majekodunmi v. R (1952) 14 WACA 64 Note also that an accused who is acquitted of the substantive offence can be convicted of conspiracy in relation to same: Orepekan v. State (1994) 14 LRCN 79. Physical impossibility does not free a man of liability as a conspirator Shodiya v. The State (1992) 2 NWLR (Pt 230) 457, held that when two or more persons agree to commit a crime, they are guilty of conspiracy whether the crime is committed or not and though in the circumstances of the case it would be impossible to commit it.CHAPTER 7TREASON AND TREASONABLE FELONYSee section 1 (2), (3) 1999 Constitution. S. 1 (1) provides for supremacy of the constitution over other laws.Section 1 (2) provides that no person or group of persons should take overpowers of the government of Nigeria except under the provisions of constitution of the Republic of Nigeria.Section 37(1) and (3) of the criminal code-Treason and conspiracy to commit treason.Section 38 -Instigating a foreigner to invade Nigeria. Section 40-41 Treasonable Felonies Section 42-49-Offences against public order. The offence of treason traverses criminal law, jurisprudence and legal theory and constitutional law. It is from this all-embracing perspective that we intend to look at it.An attempt at deciphering the philosophical undertone of the offence of treason: Treason is one of the offences dealing with public order and safety of the state. Many had seen it as the most serious offence created by the criminal code and its punishment is death. It is advisable in approaching and/or understanding most legal concepts, including statutory provisions, for conscious and serious efforts to be made at discovering the philosophical underpinnings, traversing the intricate problems, sought to be solved or even the logical implications of the particular concept or statutory provision. This has always been the most worthwhile venture for any jurist concerned with a purposeful development of the legal system and a better development of the society through its law. To this end, it is correct to say that as widely and rightly believed treason is the most serious in the criminal code, as undoubtedly it strikes directly at the very fabric of societal existence-the sovereignty of a nation.Without delving much into jurisprudential controversies, it is our belief that all modem civilized socio-political legal systems vest their sovereignty in the people who are constituents thereof. From the early natural law theories of the social contract (John Locke, Thomas Hobbes, etc) or the “common will” (Jean Jacques Rosseau) which it is submitted gradually evolve into modern day democratic system whereby citizens of any nation can freely choose or remove their leaders either as Presidents, Chancellor, P.M., Governor, Premier, etc. Thus, those freely chose came to be regarded as symbols of a nation’s unity and sovereignty. As they were collectively chosen, to overrun or kill them or seek to remove them by any other means than by the collective concord that brought them to power would amount to killing the state in question, sabotaging its corporate existence and destroying its orderliness and civilization. This is why the offence is viewed most reprehensively and attracts the capital punishment of death without alternative.Usurpation Of Powers And Treason It happens once too often that collectively chosen symbols of sovereignty are overthrown and powers invested in them by their people are usurped by force of arms or otherwise, or that usurpers have the powers usurped again from them in the ever dangerous/alluring game of power. As earlier stated, while in the sense of sabotaging collective concord, punishments with death of criminals who unwarrantedly take over by force of arms the collectively invested powers of the people is understandable or even laudable. That of usurpers, usurping from earlier usurpers or unelected dictators present a most bizarre situation and thus a challenging question of the rationale, the logic or common sense for invoking the law of treason. We must call to mind the fact that properly constituted authorities normally have an in-built mode of succession whereas usurpers/ dictators do not normally provide any orderly mode of succession save through bloodshed. Treasonable offences are also provided for in the sacred charter or constitution of any civilized community. Usurpers normally purport to mutilate or jettison the sacred charter in order to validate or anchor their treasonable acts. It is submitted from our perspective that notwithstanding obsolete positivist views bandied about as justifications for usurpation of the people’s power and/or discretions of the constitution such, acts unless subsequently positively consented to by the people, remain where they belong in the realm of unpunished treason. This is because such acts denigrate or ridicule man’s effort at orderliness, civilization and collective existence. It is also submitted that an usurper has no legal moral justification to invoke our existing laws on treason to try or kill those who attempted to usurp from him. Such killings remain murder and since usurpation and destruction of the constitution brings the community concerned back to pre-civilization era, it is an unfortunate refection of the animalistic concept of a dog eating another dog at that level. It is submitted from our perspective that if the distinction envisaged here is not adverted to, the philosophical underpinnings of the law of treason may be denigrated and our better appreciation of the concept blurred or misunderstood. There have not been many treasonable cases decided by our local courts by way of expounding this aspect of criminal lawfully, but see the following Enahoro v. R. (1965) 1 ANLR 125, Isaac Adaka Boro v. R. (1966) 1 ANLR 266, Obafemi Awolowo v. R.Sections 37 - 49 of criminal code - for concealment of treason, treasonable felonies, promoting native war and limitation of time for prosecution. For burden and standard of proof. See Omisade v. R. (1964) 1 ANLR 235).There must be two witnesses to an overt act before it could be accepted by the courts. In fact, as earlier indicated, adopting a critical, comparative and philosophical inquisitive approach to all legal issues, questions or concepts, especially the serious ones as treason ought to be the best approach considering our peculiarities. These peculiarities include under development, usurpation of powers by military dictators, rigging of elections, manipulation of electoral process, tribalism, ignorance, illiteracy and above all the operation of an imposed transplanted legal manipulations by way of bad laws or even bad judicial decisions.Therefore, short of imbibing and getting blinded by chunks of judicial chaos as manifested in inconsistent and, at times, illogical and inexplicable judicial expoundments of well-known legal concepts in support of furtherance of individual or group satisfaction clearly designative of cooperative existence, and in some cases panicky declaration by military usurpers and their surrogates in forms of decreed laws, it seems better for all lawyers to open eyes to comparative exponents or expositions of legal concepts in other successful and stable legal systems. Of special interest on this topic are the following cases:The cases of AGF v. Abiola (Unreported), AGF v. Ameh Ebute & ors. (unreported). And the various treason cases conducted under the military regime. Also the following cases deserve special attention. The FMG v. Mamam Vasta & ors; The FMG v. Gideon Orka & ors; FMG v. Lawan Gwadabe and ors; B. S Dimka & ors v. FMG. Note that the various committees that put together 1979 and 1989 and 1999 Constitutions had provided a section of the constitution that would result in making treasonable, acts of usurpation by military coups otherwise a pending offences which could be in abeyance and could be punished at any time. Note also that the military government had always obliterated this provision.Now compare and reconcile this with the limitation of time for punishment/prosecution of treason in the criminal code.?CHAPTER 8HOMICIDE Homicide is defined as the killing of a human being by another human being. Section 306-325 of the Criminal Code. Section 306 provides that it is unlawful to kill any person unless such killing is authorized, justified or executed bylaw. Following from this definition, it appears that the following killings may be authorized, justified or executed by law.1.Killing in the Execution of Court Sentence i.e. in cases carrying capital punishment e.g. murder, armed robbery, and treason etc. See section 254 of the criminal code. This justifies case of the public hangman executing a man who is on death sentence.2.Under section 262 criminal code, killing by a person carrying out lawful execution of a process or warrant or sentence or in making an arrest in order to overcome resistance.3.Killing by a police officer in order to prevent escape from arrest if the offence for which the arrest is to be carried out is punishable with death or imprisonment for 7 or more years, section 217 of criminal code.4.Killing while suppressing a riot or insurrection or where a proclamation has been made for apprehending the rioters or insurrectors.5.Killing prevention of certain named offences. Section 281 of the criminal code6.Killing to preserve order on board a vessel. Section 296 criminal code.7.Killing in the defence of a dwelling house. Section 282-R. v. Ebi (1936) 3 WACA at 36.8.Killing in self-defence or in aid of someone acting in self-defence section 286-288.9.Killing by accident and without criminal negligence. See R v. Akerele (1941) 7 WACA 56 - section 24 of criminal code. Note that consent by a person to the causing of his own death does not avail the person as a defence by whose hand the death is caused. Section 299 criminal code. Contrast this section with section 22(5) of the penal code where consent seems to be a defence. See also R. v. Okezie (1972) 2 ECSLR of where a native doctor prepared charm and the deceased consented to shooting him to test the efficacy of the charm and he died and the native doctor was found guilty of murder under section 306 criminal code. Section 307: Who is a human being capable of being killed or when is a life said to be “in being”? Section 307 criminal code provides that 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. See R. v. Reeves (1839). Section 307, is an enactment of the principles in this case. From the above section, it seems that an infant born alive but dies because of injury caused when in the womb, the person who inflicted the fatal injury may be liable. It may also mean that if the injury in the womb prevented the child from being born alive, the offence is child destruction as provided for in section 305 criminal code. Section 308 provides that any person who causes the death of another directly or indirectly by any means whatever is deemed to have killed that other person. This section throws open the question of determining the cause of death.Concept of Causation The concept of causation - once the cause of death is in issue in law, it must be proved by direct evidence e.g. by eyewitness account or evidence of a medical practitioner upon an autopsy performed on the body of the deceased, it may also be circumstantial evidence. In homicide cases, the law requires that the cause of death be proved beyond reasonable doubt and the onus is squarely on the prosecution. Accordingly, it must be shown with certainty that it was in fact the act of the accused person, which caused the death of the deceased. See Frank Onyemankeya v. The State (1964) 1 ANLR 151. In that case it was held that to establish a charge of murder and manslaughter, the evidence must be such as to show that the death of the deceased was caused by the accused person’s act otherwise there will be no nexus between the act and the factor which caused the death.Note that the concept of causation is embodied in the definition of killing on section 308 of criminal code which section implies cause and effect. The question arises as to what the provision of section 308 and 310 if read together are probative of-only the immediate cause of death? Section 308 criminal codes provides for definition of killing. Section 310 causing death by threats. See the following cases.R. v. James Halliday (1889) 61 LT 701. To escape from the violence of her husband who had used threats amounting to threats against her life, a wife jumped out of a window and broke her legs. The court held that as acts of the husband had created such an immediate sense of danger in the mind of his wife and had caused her to act as she did and suffer injury as a consequence, he was liable to conviction as having willfully and maliciously inflicted grievous bodily harm on her contrary to section 20 Offence Against Person Act, 1861. This decision is merely instructive. See also.R. v. Nwaoke (1939) 5 WACA 120. In that case, the accused pointed a juju called “Onyeukwu” at the deceased who owed him money and said something to the effect “since you refused to pay me my money this juju will kill you or since you refused to pay me you shall no more eat or drink.” He left the juju at the deceased’s house and although there was no evidence that she stopped eating and drinking, she became depressed and six days later she hung herself. The accused was convicted at first instance. On appeal quashing the conviction, WACA held that there was no evidence that the particular juju had ever resulted in the accused killing herself. No evidence that the accused knew that his conduct would lead the deceased to commit suicide.Quare Considering the traditional African belief in juju and witchcraft, can Nwaoke’s case be said to be properly decided? Also reading sections 308 and 310 of criminal code together would the court not have arrived at a different decision? Generally speaking, to what extent has the criminal code accommodated traditional beliefs in juju, witchcraft, and other fetish practices especially in dealing with issues concerning causation in homicide cases. See Chapter 20 of criminal code, sections 207 - 213 which cover witchcraft cases. All these sections absolutely condemn belief in juju. Section 210(6) “Any person who accuses or threatens to accuse another of being a witch or with having the power of witchcraft is guilty of an offence.” This prohibitive provision shows how inapplicable any allegation of causation of death due to witchcraft can be in our courts.Academic Comments As Okonkwo and Naish commented. This decision of WACA seems unpalatable. The court placed undue weight on the vagueness of evidence relating to allegations of juju. The court ought to have looked for the foreseeability of the capacity of juju to constitute a source of fear in the minds of a native African. In that case WACA also held that the reasonable likelihood of the cause producing the consequences must be proved in order to make Section 310 applicable. Okonkwo and Naish pointed out that section 310 as quoted above could be taken to envisage two situations.(a) Where the accused intends that by his intimidation, the deceased will do the act or make the omission, which results in his death.(b) Where the accused merely intimidated or threatened the deceased without requiring him to do anything but the deceased does an act or makes an omission, which results in his death. Submitting further, Okonkwo & Naish said that with this elaborate construction, the act of the accused would be a reasonable, foreseeable consequence. Even at that, it is our view that what is to be considered is the mind of a person of the deceased standing in the society, e.g. the effect of juju on the mind of a reasonable native.Even though section 310 does not express the above views, Okonkwo and Naish think it should be implied. In our view, it ought to be implied. Finally, it is our view that if section 308 and section 310 were read together, Nwaoke’s case was wrongly decided. Okonkwo/Naish rightly in our view said that the question of fear is subjective; we submit that once, subjectively, the victim’s mind is affected by invocation of juju, the accused ought to be liable. R v. Gadam (1954) 14 WACA; R. v. Iferonwe (Unreported); R. v. Jackson (1976) QDR179 Section 309 of criminal code - under this section if a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the perpetrator of the act is deemed to have killed the child.R v. Akpan (1972) U ILR 457Chain of Causation As to whether supervening circumstances can break the chain at any point in time as to make the act of the accused appear remote and not to be seen as the cause of death- See R. v. Smith (1959) I AER193. See the instructive dictum of Parker C. J. where he stated “it seems to be 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 some other causes of death are also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that death does not result from the wound.” See R. v. Holland (1841) 2 M & R 351 or (1957) Cr, LR 707. In that case, the accused injured a finger. in spite of a recommendation by a surgeon that the finger should be amputated, he refused to have it amputated. Lockjaw set in. When the finger was amputated, it was too late and A died from the lockjaw. On a charge of murder, it was contended on behalf of the accused that A’s refusal to allow the amputation of the finger was the actual cause of death. The accused was convicted of murder, stating that it was the wound inflicted by the accused that caused the death.R. v. Blaue (1975) 3 AER 446 -where the appellant actually inflicted 4 stab wounds on the deceased, one of which pierced her lung. She was told in the hospital she needed blood transfusion to save her life. On religious ground, being a Jehovah’s Witness she refused the blood transfusion and she died next day as a result of blood bleeding in the pleural cavity arising from the lung injury. The appellant was convicted of manslaughter where upon he appealed. The CA, Criminal Division upheld the conviction. Lauton L J stated, inter alia “it has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment, means the whole man, not just inter alia, physical man. It does not lie in the mouth of the assailant to say that his victims’ religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decisions is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and the death.”Contrast the above with the following cases: R. v. Jordan (1956) 50 Cr. Ar 614. Jordan knifed a youth in the stomach and a few days later the youth died in hospital. Jordan was convicted of murder but it was quashed on appeal when fresh medical evidence revealed that the youth did not die of the wound which was in fact beginning to heal but of a bronco Pneumonia caused by improper medical treatment. Hogan v. Benetrick West Hartley, Collieries Ltd. (1949) 1 AER 588 at 601 per Lord Me Dermont, See sections 311-313 of criminal code.Section 311 provides for acceleration of death. Section 312 provides for death that might have been prevented by proper precaution. Section 315 - death in consequence of subsequent treatments. Note: See section 314-It limited the time of reckoning between the acts of the accused and the death of the deceased to 1 year and 1 day. R. v. Dyson (1908) 2 KB 454. The accused inflicted injury on the deceased more than 1 year and 1 day before the death of the deceased and inflicted further injuries on the deceased within that period which accelerated the death. In directing the injury, the judge said that they are entitled to draw a conclusion of guilt if they found out that the cause of death could have been from the injury inflicted between 1 year and 1 day. The accused was convicted.On appeal the conviction was quashed on grounds of misdirection.Proof of CausationThroughout the trial, the prosecution shoulders the burden of proof. The standard in all criminal cases is beyond reasonable doubt. It is not enough for the prosecution to establish that the act of the accused persons could have caused the death. It has to be proved that the act actually caused the death. See R. v. Oledima (1960) 6 WACA 202. The accused person administered an injection on the deceased. It was not clear whether it was the injection or germs in the deceased’s body that caused the death. The accused was held not guilty.See also the case of Girembe v. Bornu N. A. (1961) 1 ANLR where the prisoner beat up the deceased with sticks and the deceased died after 2 days. Court held that it was not clear whether it was the beating or another cause that resulted in the death of the deceased. But contrast Adamu v. Kano N. A. (1956) 1 FSC 25 where the accused person stabbed the deceased twice. There was no medical evidence to prove the cause of death, the court inferred from the circumstances and found the accused person guilty. Cases frequently occur here and elsewhere in which court is asked to infer the cause of death because of the lack of medical evidence and in cases such as the above it is perfectly proper to do so.See also Emine v. The State (1991) 1 NWLR Part 204 at 494. Note especially that not in all cases is medical evidence required to prove the case against the accused person. See the case of Enwenya v. AG. of Bendel State (1993) 6 NWLR Part 297 where the S. Court opined that the cause of death could be proved by the evidence of witnesses in some cases injuries to the victims and then medical evidence if available. In Okon v. The State (1991) 8 NWLR Part 210, the C. A. stated that where the cause of death is obvious, medical evidence becomes no longer of any practical necessity, more so that this is usually what it should be when death was instantaneous or nearly so. Note that the penal code largely follows the provisions of the criminal code in these circumstances. See generally R. v. Archibong (1972) 1 ANLR 151; R. v. Onufrejozyk (1995) 2 WLR 273 on the effect of circumstantial evidence in proof of offences in criminal trials.Omissions as Actus Reus Circumstances in which omissions may be sufficient in causing the act (actus reus) of unlawful homicides. In such cases, failure to act where a duty is imposed becomes the act (actus reus) of the offence. The criminal code contains provisions imposing duties on persons to act in certain circumstances, e.g.1.Duty to provide necessities - section 300 criminal code. Under this section, when a person has charge of another person who because of age, infirmity, detention or other cause is unable to withdraw himself from such charge to provide for the other person the necessities of life and he is held responsible for any consequence to the life or health of the other person which results from his omission to perform the duty. This charge may be imposed by law or may arise under a contract or by reason of any act, which may be lawful or unlawful.Such omission may give rise to a conviction for murder or manslaughter depending on the circumstances. The offence can be manslaughter as in the case of R. v. Stone and Robinson (1972) 2 AER 341 or 2 NLR 169. In this case a duty of care was held to be cast on the appellant when the deceased who was living with them became infirmed and unable to look after herself. They held that a conviction for manslaughter was not improper simply because according to the appellants they could not foresee the likelihood or possibility of death or serious injury. The court stated it was enough ground for conviction if it became that they acted in reckless disregard of danger to health and welfare of the deceased.Note that willful neglect with the intention to cause death ground the offence of murder.See R. v. Mcdonald (1904) STRQD 151 (supra). Note specifically the almost agonizing statement of Cooper C. J.(2)Duty of the head of the family section 301 Criminal Code? : Under the above 155 section the family head should provide the necessities of life to children under 14 years of age who are members of his household and he is held by courts to have caused any consequences which result to the life or health of the child by reasons of any omission to perform that duty whether the child is helpless or not. See R. v. Senior (1899) 1 QB 283 where a father on grounds of his religious beliefs that the sick need not be given medicine caused the death of his child. He was convicted of murder.Necessities of life as aforesaid are food, clothing and medical attention, etc. It has been argued that there could be possible defences to this provision, e.g. poverty or mistake under section 25 Criminal Code? It is our view that liability of the accused person will always depend on the circumstances of each case.(3)Duty of masters-Section 302 criminal code: Any master or mistress of a servant or apprentice under the age of 16 should provide the latter with life necessities -food, clothing, shelter etc. Omission to provide which implicates him or her of the consequences under this section if it results to the loss of life or deterioration of the health of the servant or apprentice.(4)Person doing dangerous acts-Section 303. These dangerous acts include surgery or any medical treatment to another person or any other lawful act which is or maybe dangerous to life or health. The performer of such dangerous acts must have reasonable skill and is duty bound to exercise reasonable care. He is normally held guilty of any consequences, which result to the life or health of any person by reason of any omission to observe or perform the duty. See R. v. Bateman (1925) 133 LT 730 at 732. See also R. v. Akerele. See R. v. Ezeocha (1946) 12 WACA 56.In Ezeocha, it was held that the person performing the duty must have the requisite skill and not possessing the requisite skill makes him guilty of the consequence.In Oshimi (1956) WNLR 52, it was held that if someone has the requisite skill, but he was not licensed, that alone would not make him guilty under the section. See too R. v. Lawanta (1961) WNLR 133. Note that to be liable, the person performing the act must have been reckless and a reckless conduct must be proved. See R. v. Omenihu (1963) 7 ERNLR.(5)Persons in charge of dangerous things- Section 304 Criminal Code . Anyone who possesses or has under his control anything animate or inanimate of whatever nature, whether mobile or static, which is of such a nature that in the absence of reasonable care or precaution in its use or management, the life, safety or health of any person may be endangered has a duty to use reasonable care and take a reasonable precaution to avoid such danger and he is held to have caused any consequences which result to the life or health of any reason of any omission to perform that duty. In R. v. Debelsten (1966) Qd. R. 411, Ranstell J. extended this provision as not only within the objective nature of the thing in question with designed characteristics or functions, but also with the practical consequences of using an object of managing it carelessly. Thus, in that case, a sharpened pencil was held to be a dangerous thing when being thrust into a woman’s vagina by way of caress and it caused her to bleed to death.As to whether the standard of care required under this provision is civil or criminal, the code is unclear. In R. v. Scarth (1945) St. R. Qd. 38, a driver of a car fell asleep while in motion. He lost control of the car and killed 3 persons. On a charge of manslaughter a Queensland court considering the meaning of the phrase “reasonable care” and reasonable precaution, under section 289 of the Queensland Criminal Code, which is pari material with section 304 Criminal Code , Nigeria, held that it refers to criminal standard of care, which is far above the standard required in civil law (tort law). See also R. v. Gallaghan (1952) 87 CLR 45 See also R. v. Akerele. (supra).(6)Duty to do certain acts under section 305 Criminal Code When someone undertakes to do an act the omission to do which is or may be dangerous to human life or health, it is his duty to do the act or he would be held accountable for such consequences to life or health of any person by reason of omission to perform on the undertaken duty, e.g. railway gate keeper.MurderProfessor Coke defined murder as “when a man of sound memory and of age discretion unlawfully kills another with malice aforethought, either expressed by the party or implied by law, and the party killed dies within a year and a day after the same.” See R. v. Dyson (1918) 2KB 454.In England, the Homicide Act 1967 drew a distinction between capital murder. Capital murder was said to include murders done in the course of or in furtherance of theft, by shooting or causing an explosion, in resisting, avoiding or preventing lawful arrests and murder of a police office acting in the execution of his duties.Non-capital murder on the other hand was punishable with life imprisonment (Abolition of Death Penalty Act), 1965. In England, the only sentence in all cases of murder would be life imprisonment.Under our criminal code, section 316 defines a murderer as “any person who unlawfully kills under any of the six circumstances mentioned hereunder and is guilty of murder:(1)If the offender intends to cause the death of the person killed or that of some other person. There must bean intention to kill(2)If the person intends to do to the deceased or to some other person some grievous harm. See Basoyin v. A. G. W Nigeria (1968) N WLR 287, where H, intending to kill someone who was carrying their baby on her back, pursued her and inflicted matchet cuts on her back. The baby fell off her back and died of head injuries. Held. He was liable for the murder of the child.(3)If the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life. This subsection has given rise to grave interpretative problems and we shall consider it later.(4).If the person intends to cause grievous harm to some person for the purpose of facilitating the commission of an offence which offence is of such a nature that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who had committed or attempted to commit any such offence.(5)If the death is caused by administering any stupefying or over powering thing for either of the purpose last aforesaid.(6)If death is caused by willfully stopping the breadth of any person for either of such purposes. Always note the Provisos to the above subsections and also note that in any of the above circumstances the accused would be convicted of murder.In the second class, i.e. 316(2), it is immaterial that the offender did not intend to hurt the particular person who is killed. In the 3rd case it is immaterial that the offender did not intend to hurt any person (i.e. section 316(3)). In the three last cases (316 (4) - (6), it is immaterial that the offender did not intend to cause any death or did not know that death is likely to result.The Interpretative Problem Of Section 316(3) Criminal Code The question arises as to what would be the nature of prosecution of an unlawful purpose, which is of such a nature as to endanger human life. Is the unlawful purpose supposed to be a crime or a civil wrong? Or put in another way, must the unlawful purpose which gave rise to the act of killing also be such a nature as to be likely to endanger human life? Reasonable arguments have been put forward to the effect that the proper interpretation ought to be -the pursuit of a purpose contrary both to civil and criminal law. If a trespasser into a compound is requested to leave by the owner of the property and he refuses to and a fight ensues and he kills the owner of the property, such a killing would be murder under section 316(3). Another issue is whether the unlawful purpose and the dangerous act must be different or can be one and the same. For the court’s approach so far, the case of Aga v. The State (1976) 7 S. C. 173, is instructive. In that case, PW3 was altercating with her mother-in-law, when the deceased made a statement in proverb which provoked the appellant, the appellant descended on her, beat her up and kicked her 5 months old pregnant stomach. The deceased was medically certified as having died from shock and heart failure from the severe loss of blood from the uterus. The appellant was convicted for murder. On appeal, the act was distinguished from the purpose and the conviction was set aside. On further appeal to the Supreme Court, the conviction was restored and the Supreme Court stated that the phrase “in prosecution of means “in furtherance of ‘ a purpose which is unlawful. It is our view, however, that this Supreme Court’s interpretation may result in construing the pct and the purpose to refer to one and the same transaction.Note that our section 316(2 and 3) are an ipsissima verba reproduction of section 302 (1) and (2) of the criminal code of the State of Queensland.In R. v. Hughes (1962) 84 CLR 170, a fight arose between the deceased woman and another woman. The accused was living with the two of them in the same house. He proceeded to attack the deceased, punching her several times and even pursued her into her room where she retreated, threw her on the bed and inflicted several injuries on her from which she subsequently died. Accused was convicted of murder. In applying section 302(1) and (2) of the Queensland Code (our 316 (2) and (3)), the court of trial had directed the jury that both the act which caused the death and the resultant death must be the same transaction. On appeal, the court of criminal appeal stated in our opinion, the paragraph relates to an act of such a nature as to be likely to endanger human life when the act in the prosecution of a further purpose which is unlawful. The direction to the jury appears to be founded on the view that the assault on the deceased woman constituted at once the unlawful purpose and the dangerous act.”In R. v. Nicols (1933) Qd. 283, a hotel proprietor set fire to a rival’s own to divert customers. The fire resulted in death. The Australian Court in applying the aforesaid section also distinguished that act from the purpose.In R. v. Stuart and Finch (1974) Qd. R. 297, F and S conspired to force nightclubs to pay protection money as an insurance against destruction of property or injury to persons. S was to do the groundwork, and F, by lighting a fire in a nightclub, was to provide a threat, which would induce proprietors to pay money more readily. 15 persons died in a fire lit by F. It was argued on F’s behalf that he was guilty merely of arson and not murder because there was no evidence of a demand of money, that the lighting of the fire was an act done in preparation for an unlawful purpose, i.e. extortion and not an act done in prosecution thereof. The court rejected the argument as being meaningless based on the facts of the case, and held that it was enough that F lit the fire in furtherance of their common intention to extort money.See also R. v. Gould (1960) Qd. R. 283, where 2 persons caused the death of a pregnant woman while trying to abort her. They had introduced into her vagina a liquid produced by boiling a mixture of Glycerine, Dettol and Surf. The liquid caused a necrosis of the uterine walls, entered her bloodstream and caused her death. The Australian Court of Criminal Appeal held that under section 302 (2) our or 316 (3), the act and purpose were different things. That the unlawful purpose was to abort the woman and the dangerous act was the introduction into her vagina of a noxious substance.Showing further our courts distinct lither approach to the interpretation of section 316(3), see R. v. Okoni (1938) 4 WACA. In this case, one ‘Mr. Shitta had become unpopular with certain members of the Igboira native court because it was alleged that some years ago, he had seduced the wife of the son of Balogun of Pako, a town near Igboira. The third appellant who was the Bale of Igboira had ordered Shitta to leave the town, which he did. On hearing that Shitta was back in town, he ordered the beating of Oro drums, at the sound of which it was customary in Yoruba towns for women to run into their houses. While the drumming continued, he sent the first two appellants to set fire to the house in which the three of them suspected that Shitta was hiding. A woman who lived in that house was burnt to death. The appellants were convicted, WACA stated that the carrying out by the fast two appellants of a felony at the bidding of (the third appellant was clearly the prosecution of an unlawful purpose and that the act was of such a nature as to be likely to endanger human life. The court was implicit in the finding that the fatal burning of Yesago an inmate of the dwelling house was a reasonably probable consequence of setting the fire to the house.This decision still seems to point to the fact that our own direction was to regard both the act and the purpose to be the same transaction. However, the Supreme Court has finally adopted the exact interpretation given to s 302 of the Queensland code in the above cases.In concluding that the dangerous act must be different and distinct from the unlawful purpose, Uwaifo JSC delivering the lead Judgment of the court with which all the other Justices concurred in Amayo v. The State (2001) 12 SC (Pt. 1) at 17, said: “so if s.316 (c) is read as an act done in furtherance of an unlawful purpose,” it will be seen that the act is clearly not the same as the unlawful purpose. They are two different things, one being used towards achieving the other.”In R. v. Amreyorobore (unreported) Ovie- Whisky, J as he then was stated that, the act alone, if not acceptable of endangering human life, the unlawfulness of the purpose cannot ground conviction. See R. v. Nameri (1951) 20 NLR 6, where the accused raped a 13-year-old girl, who bled to death as a result of injuries to her private part caused by act of intercourse. On a charge of murder under section 316(3) Criminal Code , the accused was only convicted of manslaughter on the ground that his conduct was not such as to endanger human life, having regard to the medical evidence which showed that it is not unusual in Nigeria for 13 years old girls to have intercourse and that it does not normally result in death. Compare with Idowu v. The State (1998) 13 NWLR (Part 582) 391.It seems that if the above cases arose in Western Australia, the application of section 302 (2) would have led to different results. See also R. v. Obi (1957) WRNLR 91, where it was held that since it was not unusual for 14 years old girls to engage in sexual intercourse and since the accused person did nothing like stopping the breath of the girl, he could only be guilty of manslaughter. The medical doctor who testified in the above case was, however, of the opinion that “if one party is not accustomed and not willing to indulge in sexual intercourse and is forced, a sudden inhibition of the working of the central nervous system could arise and it could cause shock, collapse and death.”Note that Okonkwo and Naish had argued that a better approach may be construing the subsection both subjectively and objectively to determine whether the act in question was likely to endanger human life. The test as usual will be that of a reasonable man of the accused person’s standing in life. If such, a reasonable man would have foreseen the likelihood of danger to human life, then the accused person’s expectation is immaterial in R. v. Idiong & Umoh (1950) 13 WACA 30, it was held that if a reasonable man can expect a particular act to be capable of endangering human life, then the accused belief is immaterial. See the provision under section 316 (5) and (6). Implicit therein is the requirement of knowledge. Therefore, it seems that if section 316 (3) is read with proviso, it would be immaterial that the accused person did not know or believe that death was likely to result.Then the question would be that if section 316(3) were read along with the proviso, would the earlier discussed rape cases be decided as they were?In view of the ambiguity shrouding the provision of section 316 (3), Okonkwo and Naish had suggested a repeal, arguing, that the other provisions of section 316 cover the situation envisaged under section 316(3). Note the remark of Bairamian, J. in Ogbuagu v. The Police (supra) as regards interpretation of the code. See R. v. Dogo (1949) 12 WACA 519. Beard v. DPP [1920] 1?A.C. ? 479? Manslaughter - Section 317 Criminal Code Under section 317 of criminal code, any unlawful killing which does not amount to murder is Manslaughter.It must be recognized at the very onset that manslaughter is an intermediate crime- a half way house between the more serious crime of murder at one extreme and justifiable or excusable homicide at the other.It has also been said that there are different states of mind involved as far as the two offences are concerned.Murder is said loosely to connote aforethought. In manslaughter, however, it is also said that the malice is absent.In our view it seems better not to say that malice is absent as far as manslaughter is concerned but rather to say that when fatal injury is inflicted in the heat of passion due to provocation, the law, even though at the time of the killing there existed in the mind of the killer the intent to kill, will disregard the intention and grade down the offence to manslaughter. In the opinion of the law in those cases although an intent to kill existed, it is not regarded as the willful deliberate and premeditated intent which would make the offence murder but rather an intent formed under the influence of passion induced by provocation and the product of a mind so disturbed as to be incapable of deliberation and calculation.Under section 318 of criminal code, the ingredient that must exist if provocation is to be relied on as defences are outlined. Note also that after some confusion section 23 8 of the Criminal Code had been held to define provocation for the purpose of section 318.Therefore, we are to pay attention to the definition of provocation in section 283. See Obaji v. The State (1965)1 ANLR 269.Note also that the offence of provocation would not justify the killing but merely reduce the unlawful killing to manslaughter. If there is an unintentional killing, gross negligence or where the death arose from an unlawful act involving the risk of harm the accused is not let of free. He is always held guilty of involuntary manslaughter. For negligence to give rise to manslaughter, it must be of a higher degree than that required under the law of tort. The accused must have been very negligent or plainly reckless - Criminal negligence has often times been said to submerge into recklessness.Note the other following homicide offences. Section 326 criminal code aiding suicide-any person who aids another to commit suicide, if it is proved, punishment is life imprisonment.Section 327, attempting suicide on conviction the punishment is one year imprisonment.Section 327 A, infanticide-This includes killing of a child under 12 months by her mother. If at the time of killing her mind was disturbed as a result of lactation following the birth of a child or not recovering from the effect of childbirth, the offence should be treated as manslaughter. We are also to note that it is not every killing of a child under 12 months by her mother that will amount to infanticide.Killing an unborn child and attempt to procure abortion. See R. v. Edgal (1983) 4 WACA 133. There are expectations to the offence of procuring abortion, e.g. if it is to save the life of the mother of the child as happened in R. v. Edgal (1983) 4 WACA 133 (supra).Self-Defence We noted earlier on that if a killing is justified, authorized or excused by law it is lawful homicide e.g. killing in self-defence. See section 286 of criminal code. It allows the use of reasonable force in defence of self against assault. It means that when a person is unlawfully assaulted and he had not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault.If the nature of the assault is to the effect of causing reasonable apprehension of death or grievous harm and the person using force as a defence believes on reasonable grounds that he cannot preserve the person defended from death or grievous harm it is lawful for him to use any such force on the assailant as is necessary for defence even though such force may cause death or grievous harm.The more severe the assault the more likely the defence may be accepted. If the assault is such as to induce reasonable apprehension of death or grievous injury the killing of the assailant in self-defence must be acceptable and justifiable.Note particularly section 287 of criminal code and the circumstances in which the defence of self-defence may be available to an accused person of special interest to use should be the fact that in the criminal code there is no requirement that a party relying on the defence of self should retreat before retaliating but it seems that retreating is required under common law.See The State v. Udo (1967) F.N.L.R 6 where the court introduced this purely common law requirement into Nigerian law. See also R. v. Nwibo (1950) 19 NLR 124, where the court left open the question as to whether section 286 providing for self-defence should be read subject to common law rule that the person should retreat as far as possible before killing his assailant. Note the difference between self-defence and fighting, See R. v. Knock (1877) 14 Cox I. Note that in court it is the accused person that ought to raise the defence of self-defence. But the courts, if from the evidence it is clear that the accused person was merely acting in self-defence ought to consider the defence of self defence even if the accused person did not raise it. Section 288 Criminal Code? provides for circumstance in which one may use force to defend not only himself but others.The Effect of the Common Law See The State v. Udo (supra) See also R. v. Jullien (1969) 2 AER 856 where the position at common law seemed to have been overruled.It was heldthat there was no rule that person threatened must run away if he can, that it was enough, if he demonstrated by his actions that he does not want to fight. Holmes J. stated “that he is prepared to temporize and disengage and perhaps to make some physical withdrawal.” The court further stated that failure of the defendant to do so would not disqualify him for the defence but it would merely be an element to be considered in judging the reasonableness of his action. In Holmes-Lasky letters, Holmes J. disfavoured the pre-requisite of withdrawal when he stated “I think the instance of an earlier statement realizing by repetition into an absolute principle when rationally it is one of the circumstances to be considered with the rest in deciding whether the defendant exceeded his reasonable limits.” He stated further that the retreat requirements may not even be necessary if the assault was continuing. From the foregoing it appears that the correct legal position is that section 286 of the criminal code is the law dealing with defence in Nigeria and the common law requirement of retreat at best will be a question of fact determinable upon the circumstances of a particular case.See the following Cases: R. v. Igwe (1938) WACA 117: Here the deceased carried a matchet pursuing the accused who disarmed him, fell him to the ground receiving no injury himself killed him (the deceased) with his own weapon. The court held that the accused had a good defence under section 286 that he reasonably believed that the deceased intended to kill him and that under the heat of the moment “he may well have thought and indeed not without reason that he was engaged in a life and death fight with the deceased and that if he does not kill the deceased he will certainly be killed by him.” In R. v. Nwibo (1950) 19 NLR 124, the court posed the question but did not provide the answer as to whether section 286 should be read subject to the common law requirement of retreat. It is submitted that recourse to the common law is unnecessary considering the warning sounded by Bairaman J. in Ogbuagu v. The Police, (supra) that in interpreting the criminal code provisions, the court ought to see it as complete and exhaustive.See the following recent cases Njoku v. The State (1993) 6 NWLR Part 229. Note that where the accused started the assault and the deceased descended on him viciously, intending to kill him, the accused person may be availed of the defence of self-defence. SeeR. v. Onyemaizu (1958) NRNLR 93, where the court pointed out that the defence would not be available to somebody who is abnormally excitable as to believe himself to be in danger of death at the commencements of a relatively minor assault, but if an accused person started the assault with intent to kill or he endeavoured to kill or do grievous harm before he thought it necessary to defend himself he cannot rely on the defence unless before the necessity to defend himself arose he had declined further conflict quitted from it as far as practicable. See The State v. Enabosi (1965) NMLR 241Note that the defence cannot be available, if another person not the assailant is killed in unreasonable or excessive defence. See - R. v. Johnson (1964) QdR 1. Nwede v. The State (1985) NWLR Part 13 at 45, Ekpe v. The State (1993) 5 NWLR Part 297.In this case it was stated that the court in considering whether the assault is such as to cause death or grievous bodily harm would take into account the nature of the weapon and the disparity in strength between the assailant and the defendant. In Ekpe’s case, the deceased used a lantern to attack the accused person who retaliated with bottles. The court held that the weapon used to retaliate could not sustain the defence.In Nwedes case the court held that the killing would not be excused if the deceased is armed with a small pen knife as alleged by the accused since the weapon was far smaller than that carried by the accused. It may also be necessary for the court to consider evidence of previous enmity, threats and assaults between the parties even if the instant assault would be considered insufficient to cause harm, reasonable apprehension of death or grievous bodily harm. See R. v. Muratovic (1967) QDR 15. It has been argued that a killing that occurs when two people are merely fighting cannot be excused by law.See R. v. Caniff (1840) 9 C&B 359 Where the killing was held to be manslaughter. But this position creates a dilemma because if the assault is continuing, it will always lead to a fight.See R. v. Knock (supra) where Lindley J. was almost agonizing over the difficulty in drawing a line between self-defence and fighting. Finally, it was necessary under section 286 of the Criminal Code for retreat to be required, it ought to have been expressly incorporated.Under section 287 when a person starts an assault with intent to kill before he changes his mind “he must withdraw and quit further conflicts.”?CHAPTER 9ASSAULTS1.Non Sexual Assaults Under section 252 of criminal code, any person who strikes, touches, moves or otherwise applied force of any kind to the person of another either directly or indirectly without his consent or with his consent, if the consent is obtained by fraud or without any bodily act, attempts by bodily gesture to apply force of any kind to the person of another without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose is said to be assaulting that other person and the act is called an assault. The term “applied force” is used to describe the application of heat, light, electrical force, gas, odour, water, or any other thing or substance whatsoever if applied in such a degree as to cause injury or personal discomfort. The question could arise as to whether this definition above envisages something like the administration of poison. If we take into consideration the phrase, “any other substance or thing whatsoever” it is possible to argue that considering the above phrase, section 252 also envisages the administration of poison. But it seems to be a better view that “applying force” will not include the administration of poison. This is because the rule of interpretation appropriate to such instances is? ejusdem generis rule, whereby the meaning of general words or terms could be determined from the accompanying specific words thus restricting the general words to the sense analogous to the specific words. Note that mere words directed at somebody will not amount to an assault unless accompanied by some bodily acts or gesture associated with the words indicating an intention of assaulting or which an ordinary person construes as indicating such an intention. See:R. v. James (1844) 1 C & K 530 Kwaku Mensah v. R. (1946) AC 83 Brady. Schatel (1911) St. R. Od. 206.Note also that words accompanying an act or gesture which could ordinarily have been an assault may explain the conduct so that no assault will be inferred. See Tuberville v. Savage. See however, Fogden v. Wade (1949) NZLR 724; where it was held that walking up close behind a girl and making an indecent suggestion would constitute an assault.See Fagan v. MPC (Metropolitan Police Commissioner) (1969) 1 QB 139 where the accused person drove his car against a police officer’s feet in circumstances where it was doubtful as to whether it was accidental or not and deliberately delayed removing the car and was held to be guilty of assault.Note that as distinguished from torts law, assaults and battery are criminally punished as assaults only. As to the possibility of applying force indirectly, note the following cases:R. v. Martins (1881) SB QBD 54; R. v. James Halliday (supra) The question arises as to whether the Knowledge of the person assaulted is necessary in considering whether an act amounts to an assault. Okonkwo and Naish argued that Nigerian courts would be following their English counterparts and holding that there must be caused in the victim’s mind some expectation of an immediate use of force.Note that section 252 defining assault did not specify this. The rationale behind the argument of the learned authors is that it will not be an assault to, e.g. threaten a sleeping man or an unconscious person.It is submitted, however that section 252 is so clear as to what ought to amount to assault. We must not forget the warning of Bairamian, J. in Ogbuagu v. The Police. A further point against the view canvassed by Okonkwo and Naish is that if the word “threaten” cannot be ascertained without reference to the victim’s mind what about the word “attempt”? Note the provisions for section 253 to the extent that an assault is only unlawful if not authorized, excused or justified by law.Note also that to be unlawful the person assaulted must not have consented to the assault.As a general rule all who go about in public entering taxis or buses or engaging in acts that warrant body contact with others are deemed to have consented to such contacts. Note also that if the consent is expressed it negates the assault, provided that the act consented to was within the reasonable expectation of the party consenting; thus if you visit a salon to do your hair you, would have been taken to consent to the reasonable exercise of hair do?2. Rape -Sexual AssaultSection 357 Criminal CodeIn considering the act of rape (actus reus) we need to see section 357 of criminal code and 51 (1) of Sexual Offences Act 1956, England. From those sections, the gist of the actus reus of rape is unlawful sexual intercourse with a woman without her consent or with a consent obtained by force, threat, intimidation, fraud or fear. In determining the mens rea necessary for conviction the accused person must have had an intention to have sexual intercourse with a woman either knowing that she does not consent to the actor being reckless as to whether she consents. See also Sexual Offences Amendment Act, 1976-England. We are to note that the act of intercourse is complete upon penetration. It need not be proved that there was emission of semen. The slightest degree of penetration satisfies the definition under the section and the hymen of the victim need not necessarily have been ruptured; R. v. Rossen (1777). See also section 44 Sexual Offences Amendment Act 1976-England. Note also that every male can commit rape except a male person under 12 years who is under section 30 of the criminal code presumed incapable of having carnal knowledge.Consent RequirementThe gist of the act of rape is consent of the woman. Presence or absence of consent must be pronounced on by the court, R. v. Harling (1938) 1 AER 307, Humphrey J stated, inter alia, “in every charge of rape, the fact of non-consent must be proved to the satisfaction of the jury” As earlier stated consent obtained by force, fraud, fear or intimidation, is not consent.See R. v. Williams (1923) 3 KB 340 where a choirmaster deceived the victim into believing that the act of sexual intercourse will improve her voice. Held: The consent given is not consent. See also R. v. Camplin (1845) 1 COXCC 220 where a woman was ravished while in a state of intoxication. Held: Rape is committed.Osadieye v. The State, where the accused person gave drugs and liquor to the victim allegedly for the purpose of exciting her. Held: Putting her in such state defeats consent.R. v. Jones (1861), where a woman submitted as a result of fear of bodily injury or death; R. v. Lang (1975) 6 Cr. A.P.R. 50. We must note that the absence of the use of force without more would not support the claim that there was consent. Therefore, it has been held to be rape to ravish a sleeping woman. See R. v. Mayers (1872) 12 COX CC 311. We have to note that if the person raped is too young as to understand the nature of the act it does not satisfy the requirement of consent. See R. v. Howard (1965) 3 AER6 where the accused person was convicted of attempting to rape a six year old girl. The court stated that if the girl is under age, the prosecution must prove physical resistance by her or that her understanding and knowledge were such that she was not in a position to consent or resist.Section 293 of penal code states, that a woman below the age of 16 giving consent to her teacher, guardian or anyone entrusted with her care is no consent. See section 39 of penal code’s definition of consent.In DPP v. Morgan (1976) AC 192, the court held that a defendant could not be convicted of rape, if he believed, albeit mistakenly, that the complainant consented even though he has no reasonable ground for that belief (it appears that section 1(2) of Sexual Offences Amendment Act 1976 was directed at this decision by injecting the test of a reasonable man’s belief). Further, in the position in England under section 2 (1) where a defendant had pleaded not guilty to a charge of rape except with the leave of the judge no evidence, question, or cross-examination can be adduced on the defendant’s behalf of any other sexual experience of the complainant with another person See Hinds v. Buiter (1979); R v. Mills.Section 210 of Evidence Act seems to be opposite of section 2(1) of SOAA 1976 of England, if so the cases of Hinds v. Buiter and Mills would have been decided differently in Nigeria. Section 210 of Evidence Act provides, that in prosecution for rape or attempted rape, it might be shown that the woman against whom the act is alleged to have been committed was of a generally immoral character. Thus, she may be asked in cross-examination, if she had had sexual intercourse with other men or with the defendant at other times. Quare: What is the relevance of the evidence of the sexual adventure with other men? Can such evidence be said to be probative? Is section 210 of Evidence Act not in effect redefining the offence of rape in Nigeria to mean unlawful carnal knowledge without consent of a woman of chaste morals? Thus, in Nigeria for the time being the position seems to be that when consent is in issue in an indictment for rape the trial judge must examine the following:(a)Is the victim virtuous?(b)Did she struggle, scream or otherwise call for help?(c)Did her body or clothing show any mark of tear indicating resistance or force? It has been held in R. v. Hinton that a negative answer to the above questions carry a strong presumption of the falsity of the complainant’s testimony. In State v. Ojo, the complainant was a virgin. The vice-principal of her school testified that the complainant came to him in a distressed and injured condition immediately after the alleged offence. The court held that her circumstances were convincing for the court to believe the truth of her story.Husband and Wife-Section 6 Criminal Code Brian J. in R. v. Clarke (1949) 2 AER 488 stated “as a general proposition it can be stated that a husband cannot be guilty of rape against his wife for by that mutual matrimonial consent and contract the wife had given herself in this kind unto her husband which she cannot retract.” See section 6 of the criminal code which defines unlawful carnal knowledge as that otherwise than between husband and wife. There are, however, exceptions to this rule -(1)If there had been a judicial separation(2)If the court had granted divorce or annulment of the marriage with a non-cohabitation clause(3)If there had been an agreement to separate with a “no molestation cause”; R. v. Steele (1977) CLR 290.(4)Where a decree nisi subsists as in R. v. Miller (1954) 2 QB 282 where it was held that the consent between husband and wife does not cease to exist merely after filing petition for divorce in court.But if a husband uses force of violence to exercise his right of intercourse, he may be guilty of assault per Lydley J in R. v. Miller, (supra).Note that so far as a husband cannot be guilty of raping his wife under section 7 of criminal code he may be guilty of aiding the rape of his wife by another person. R. v. Lord Audley. In Nigeria it was held in Alawusa v. Odusote (1941) 7 WACA, 140, that a husband was not guilty of indecent assault on his wife for shaving her public hairs and, court further stated that the assault on a wife to be held to be indecent would not be as if on another woman. Note that the wife is not restricted to monogamous Christian marriage.Note also that under section 7 of criminal code a woman and even children under 14 years might be guilty of aiding and abetting, and procuring the offence of rape. R. v. Ram and Ram (1893)17 CC 69, where a wife took their maid, a young woman by force to her husband’s bedroom where he had intercourse with her and the wife was convicted as a principal in the 2"° degree.R. v. Elder Shaw, (supra) where it was held that although a boy under 14 years would be incapable of committing other offences including intercourse, he could be guilty of aiding and abetting same.As to what circumstances are capable of defeating consent as between husband and wife, we consider the decision in Foster and Foster where it was held that inordinate or unreasonable demands by a husband or if the husband becomes a drunkard or has venereal disease, the wife might withhold consent. Note that a husband cannot extend his marital intercourse right to a 3rd party to overcome the requirement of consent.A complaint for the offence of rape must be made within the first reasonable opportunity; R. v. Osborne (1920) 84 J. P. 63. Reasonable opportunity depends on the circumstances of the case: R. v. Lee (1962) CLR 500. The absence of complaint although a strong evidence of consent is by no means conclusively exculpatory because the victim may have been overcome by shame, humiliation, revulsion, etc.An important exception to the rule against fraudulently secured consent seems to have appeared in the case of R. v. Papadimitropolous (1958) 98 CLR 249, where a woman was fraudulently induced to believe that she was married, when in actual fact she was not married. Held: that it is only penetration without consent that grounds the offence of rape. That the consent involves the character of what is about to take place, the identity of the man involved and the character of what she is doing, and once these factors of consent are complete comprehending the actual inducing cause would not destroy its reality and leave the man guilty of rape.Inferable from the foregoing is the fact that offence of rape need not be mixed with certain forms of evil conduct. It cannot be said that because the woman believed it to be a perfectly moral act which she later found out was not would defeat the consent given. The question arises as to where the development of this offence would be heading to in Nigeria. In other words what are the underlying principles or philosophical considerations? What is the future of the offence? The position in England appears to be as it appears in Sexual Offences Act 1976 following the decision in DPP v. Morgan and also expounded in the following cases: R. v. Bashi (1982) CLR 687; R. v. Madigan (1982) Cr. AR 145. Considering the fact that underlying principle behind any good law is attainment of the ends of justice and the facts that justice means treating like cases alike, would it not be necessary in the near future to consider the circumstances that give rise to this offence with a view to making it apply to male and female alike?Critically appraise the rule that a husband cannot be charged with raping his wife. Are there exceptions to this rule consistent with the rationale behind the general rule?(2)Whose interest would you say the law seeks to protect by declaring assaults and battery criminal. Are the interests protected by the criminal law in this area not adequately catered for by the law of torts???CHAPTER 10STEALING Any person who fraudulently takes a thing capable of being stolen or fraudulently converts to his own use or to the use of any other person, anything capable of being stolen, is said to steal that thing. Section 383 Criminal Code . See Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 60; Okoroji v. The State (2002) 5 NWLR (Pt. 759) 21 at 49. It is noteworthy that the offence created by Section 383 is not the common law offence of larceny. Therefore, common law cases dealing with larceny need to be resorted to except for the purpose of familiarizing oneself with the historical development of modern theft crime. Thus, under the section the operative words are “taking and “fraudulently converting.”Element of Stealing See the case of Orepekan v. The State (1994) 14 LRCN 115; The State v. Nnolim (1994) 18 LRCN 1; Chianugo v. The State (2002) 2 NWLR (Pt. 750) 225 at 235-236.The elements are:(i) Fraudulently taking anything capable of being stolen; or(ii) Fraudulently converting to one’s own use or to the use of any other person anything capable of being stolen.(iii) The thing taken or converted must be capable of being stolen.(iv) Element of fraud in the taking or conversion of the thing capable of being stolen. A person is deemed to do so fraudulently if he does so with any of the six intents mentioned in s. 383 (2) Criminal Code .(v) Absence of consent is implicit in the definition of offence.“Taking” (Under Section 383 C. C). To constitute “taking,” the person must move or cause the thing in question to move. The thief need not secure complete physical possession of the thing. The least movement of the thing is enough to satisfy the requirement of intent under section 383 (2) Criminal Code? Thus, one can take another’s property without removing it from the latter’s premises or from his presence. In R v. Taylor (1911) 1 KB 674, the accused had almost removed a purse from a policewoman’s pocket before he was obstructed. For the purposes of stealing, he was held to have taken the purse. Also Dim v. Kirkurko (1961) CLR275, the accused person who was a postal clerk in charge of collecting local parcels removed a package from the foreign parcels rack and placed it at the local parcels rack, with the intention to take it away later. He never had the time or opportunity to take it away. It was held that the movement was enough taking.ConvertingConverting is not defined in the criminal code. Okonkwo and Naish had submitted that it ought to be given its common law meaning which is “dealing with goods in a manner inconsistent with the rights of the hue owner or to assert aright inconsistent with the rights of the true owner.” See Lancashire & Yorkshire Railway Co., v. Mae Nicoll (1918) 88 L. J. KB 601.In The State v. Uwa (1995)1 ANLR 356, the accused person detained 5 Lada cars delivered to him for another person, for the purposes of getting a debt owed to him by the complainant. It was held that there was no conversion because there was no intention to convert, i.e. animus ferrandi. As we must remember from the law of torts, to destroy, alter, pledge or use property belonging to another is to convert it. Note, however, that in criminal law unlike torts law, the act complained of, as amounting to conversion must be accomplished by one of the fraudulent states of mind listed in section 383 (2) Criminal Code? Note also that it would still amount to conversion even though the wrong doer derived no personal gain or benefit from dealing with the property as he did. The criminal code’s requirement in Us regard is only that the conversion would be to the use of the accused or to the use of any other person. In R. v. Anyadiegwu (1943) 9 WACA 67, it was held that moving sums of money from one safe to another belonging to the accused’s employers would not ground a conviction for the offence of stealing by conversion because the movement of the sums did not amount to conversion to the accused’s use or to the use of another.The Element of Consent The criminal code is silent on the element of consent in the offence of stealing. However, in Wada v. LG.P (1957) NRNLR 1, the court held that the taking or the conversion to ground stealing must be without the consent of the owner. Therefore, the absence of the consent of the owner is implicit in the offence of stealing. In the above case, the first appellant, a police constable and another civilian, demanded money from the complainant lest they search the complainant’s house. The complainant paid the money. The appellants were convicted of taking the money without the complainant’s consent. The Judge stated that their acts were “of such a nature as to unsettle the mind of the person upon whom it operates and take away from his acts, that element of voluntary action which constitutes consent.”The Element of Fraud Under Section 383See Alake v. The State (1991) 7 NWLR (Pt. 205) 567. From the foregoing discussion, not every taking or conversion will support a charge of stealing. The requirement of fraudulent intention or animus ferrandi must be satisfied. Section 383(2) spells out six instances of animus ferrandi, which would make a “taking” or “conversion” fraudulent.1.An Intent Permanently To Deprive The Owner of the Thing- 383 (2) (9): This would mean deprivation either permanently or for an unreasonable length of time. Temporary deprivation may not be enough. In R. v. Bailey (1924) Qd. W N. 38, the accused borrowed a car from his friend and did not return it at the time he promised. It was held that it did not amount to permanent deprivation. Under this subsection the thief need not make personal use of the thing. If, he destroys, alters, or gives it away, it can still ground the offence. The courts therefore construe stealing in terms of the owner’s loss and not the thief’s gain. See R. v. Hall (1849)2 C & K 947; R. v. Holloway (1849)2 C & K9 42.In R. v. Ninedays (1950) 4 FSC 192, the accused and others conspired to obtain payments for some bags of cocoa belonging to a marketing board by representing to the board that the cocoa came from U.A.C. It was held that they could not be convicted of stealing those bags of cocoa since they did not intend to deprive the board of the property in the cocoa. Okonkwo argued rightly that this decision is not a reflection of the true interpretation of the section.2.An Intent Permanently To Deprive Any Person Who Has Special Property In The Thing Of Such Property-383 (2) BThe principle here seems to be the protection of those who, although they are not owners, they have special interest in the property in question. As we know, someone may be in possession of a thing to which he has no title e.g. lien in a property or a bailee for reward - both owner and bailee can prosecute the thief. Also the finder of lost property who normally has a better title as against all but the owner (Amorie v. Delamerie) can prosecute under this heading; also an owner of land has rights over items found thereon (Hibberts v. Kenna).3.Section 383 (2) (C) - An intent to use the thing as a pledge or security. Under this heading, it had been argued by Okonkwo that the court ought to consider the ability and the intention to redeem the thing pledged as capable of being a defence.4.Section 383 (d) -An intent to part with it on a condition as to its return, which the person taking or converting it may be unable to perform. This covers where someone gambles with another’s property, if he loses, he could be held guilty of stealing it.5.Section 383 (2) (C) -An intent to deal with it in such manner that it cannot be returned in the condition that it was at the time of taking or conversion. Thus as in R. v. Bailey, (supra), if the accused person after using the car for three days could not return it as it was before borrowing it, he could be found guilty under the subsection.6.Section 383 (2) (t) If the thing stolen is money, the intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner. See The State v. Orizu (1954) 14 WACA 455. Okonkwo had suggested that for a proper application of this subsection, there ought to have been a demand to pay back followed by a refusal. See R . v. Sagoe (1963) 1 ANLR 290. Held: A solicitor’s lien for costs cannot extend over a large sum of money than is justly due to him. It seems that the mischief at which this subsection is directed is misappropriation of money entrusted to someone. The question arises as to whether the condition suggested by Prof. Okonkwo could go with the obvious mischief against which the subsection is directed.Question:1.Critically examine the provisions of the Nigerian criminal code relating to the mens rea of stealing.2.A, is a driver employed by B, a businessman. Customarily, A takes B to work in the morning and goes back for him at 4.00pm. In-between the hours that he deposits his employer in the morning and 4.00pm, A piles the routes between Oyingbo and Obalende, picking passengers and pockets the money. In the evening, he refills the tank of the car before collecting his employer. Has A committed any offence?3.Two friends X and Y broke into the house of a local pastor one evening. While there, they killed a cat, the pastor’s son’s pet. They also destroyed a large quantity of illicit gin, which the pastor stored in his cellar. Finally, they removed a human skeleton from a shallow grave at the back of the pastor’s house for juju purposes. What offences have X and Y committed?See the following cases:Alake v. The State (1991) 7 NWLR (Pt. 205) 567.; Babalola v. The State (1989) 4 NWLR Ft. 115, where it was held that the mens rea of stealing consists of an intention not only to take away moveable property from the possession of the owner but also an intention to permanently deprive the owner of the property. But does this reflect the true intendment of the provision of the code?Section 383 (5): Finding And Conversion Under section 383 (5) Criminal Code , the finder of a lost property does not convert it fraudulently, if at the time of taking or conversion he does not know who the true owner is or he believed that owner cannot be found. In Akpan Unimokong v. C. O. P. ENLR 32, the court stated that it would amount to stealing by conversion if at the time of physical taking or carrying away, the finder did not believe that the owner could be found. In R. v. VEGA (1933) 4 WACA, the accused person removed some corrugated iron sheets belonging to the government. His conviction was quashed on appeal as the appeal court believed that he acted in good faith and that he reasonably believed that the sheets were abandoned. Section 382 Criminal Code? listed certain things that are capable of being stolen. The question arises as to whether that section is exhaustive. It has, however, been supplemented by case law.In Ojiko v. I.G.P. (1956) 1 FSC 62, A received money from B in order to buy land in A’s name and transfer it to B. After buying the land in his name, he refused to transfer it to B. On a charge of stealing the money and the land, the Federal Supreme Court held that A was not guilty of stealing the money because he had used it for the purpose which it was intended. Also that he was not guilty of stealing the land purchased because land was incapable of being stolen. Further, it is believed that an ownerless thing cannot be stolen.In common law, a corpse cannot be subject of ownership and so cannot be stolen: Dobson v. North Tyneside Health Authority (1997) 1 WLR 596 (C. A. England) but where a person has performed some work of skill on such a corpse in his lawful possession with the object of preserving it, it thereby acquires a usefulness or value and is capable of ownership and of being stolen: Doodeward v. Spence (1908) 6 CLR 406; R. v. Kelly v. Lindsay (1999) 1Q B 621 C.A. The question that arises is whether an illegal thing is capable of being stolen. There is no local authority. But in R. v. Indaba (1961) 2 SA 145, where the accused person broke and entered into a shop where he stole a dagger and some narcotic drugs. Under the South African Law, possession of such items are illegal. The accused was convicted of stealing. In Nigeria it appears that there has not been any law that says that illegal things cannot be stolen. The Nigerian court could follow the South African approach but it is submitted that the common law maxim of “exturpi causa non oritur actio,” no action can arise from an illegal cause, would always be a persuasive argument any day for the defence. Under the penal code section 286 creates the offence of theft in the following terms:“Whoever intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to take it, is said to commit theft.” Note that the requirement of the consent is expressly provided for. Glendhill in his notes on the penal code pointed out that under the code, property obtained by cheating or any offence under the code not mentioned is not stolen property. Only property obtained by theft, extortion, robbery or criminal breach of trust is stolen property.In England, the common law offences of larceny codified under the Larceny Acts of 1961 and 1916 provides that “a person steals who, without the consent of the owner, fraudulently and without claim of right made in good faith takes and carries away anything capable of being stolen with intent at the time of such taking permanently to deprive the owner thereof.”Later the Theft Act of 1968 and 1978 emerged in England to consolidate the various statutory provisions already existing and to state them in a more convenient and accessible form. Smith and Hogan submitted that .”..any assumption that there was no intention to alter the previous assumed position would be completely misconceived...” Nevertheless, reference to earlier cases would be permissible in certain restricted circumstances.Section 1 (1) of the Theft Act 1968 like the penal code of Northern Nigeria used the term “a person is guilty of theft if he dishonestly appropriates property belonging to another and “theft” and “steal” shall be construed accordingly. Thus, “dishonestly” displaces the argument that the defendant should act fraudulently and without claim of right made in good faith” as provided for under the Larceny Act. It was the criminal law Revision Committee that believed that “dishonestly” was better than “fraudulently,” the former being easier for the layman to understand. However, Smith and Hogan submitted that cases decided on fraudulent conducts will be instructive and inevitable in elucidating dishonest conduct.Section 427 Of Criminal Code-Receiving Stolen PropertyDuring this section any person who receives anything which had been obtained by means of any act constituting a felony or misdemeanor or by means of any act at a place not in Nigeria which if it had been done in Nigeria would have constituted a felony or misdemeanor, and which is an offence under the law, in force, in the place where it was done knowing the same to have been so obtained is guilty of a felony. It is noteworthy that for the purpose of proving the receiving of anything it would be sufficient to show that the accused had either alone or jointly with some other person had the thing in his possession or aided in concealing it or disposing of it. See Hobson v. Impett (1946) CLR 76.For a person to be convicted of receiving stolen property it must be established that he has either received the physical goods or they were in the possession of a person over whom he had control. See R. v. Amissah (1946) 12 WACA 12.Physical possession of the thing stolen or received is known as actual possession while possession through a person over whom the accused has control is deemed to be constructive possession. See Olajumoke v. R. where a particular material was found in the possession not of the prisoner but of his wife. WACA Held: “It is clear that actual possession of the goods by the defendant is not necessary for the commission of the offence for receiving it is sufficient if they are in the actual possession of the person over whom the defendant has control so that they would be forthcoming if ordered.” See also R. v. Fredman 22 CRAP 133, where it was held that where two persons are acting in guilty concert and the first accused is in possession of the goods to the knowledge of the 2nd accused, the second accused will also be deemed to have unlawful possession of the goods. See R. v. Uko WACA 65. Note that receiving the thief who has the goods in his possession does not necessarily amount to receiving the goods, so far as the thief intends exclusive control. See R. v. Willey (1850) 2 Don 37. Here the accused person was arrested while bargaining with the thief over stolen articles. He was held not guilty of receiving.R. v. Osakwe (1963) 1 ANLR 63, the facts are almost as in Willey: In R. v. Osakwe (1963) 1 ANLR 63, A, B and C stole car, X agreed to get a buyer if the car is in good order.X gave A shilling for taxi to fetch the car, at that stage they were apprehended. Court held that X was not guilty of receiving.It has been suggested that for receiving to be criminal it must be dishonest, i.e. the receiver knowing the goods to have been stolen must intend to appropriate them to his own use or to the use of some other person than the true owner. Note that this requirement of dishonesty was not expressly provided for under section 427 of the criminal code. In R. v. Osakwe (1963) 1 ANLR 63the court stated “that X was not guilty of receiving because he never had the car in his possession nor had he already aided in concealing or disposing of the car.” The suggestion by Okonkwo v. Naish that the requirement of dishonesty is supposed to be read into Section 427 accords with Lord Goddard C. J. who felt that a contrary suggestion was “so startling that I am surprised that the argument can be put.”The question arises as to whether receiving in order to handover to the police or to the owner would not amount to receiving property under the Code. See R. v. Onuoha (1936) 3 WACA 88 where the accused and a constable searched a shade for counterfeit. The accused person found some counterfeit. On a charge of receiving, based on the evidence and absence of other facts, he was acquitted. Note that to succeed, even if the accused person admitted receiving the item the prosecution must prove that the accused was in actual constructive possession of the item or the charge would fail. R. v. Obiase (1938) 4 WACA 16. Note that the property or thing received must be a thing originally obtained by means of an act or omission constituting a felony or a misdemeanor, e.g. stolen property or property obtained by cheating, robbery, or under false pretence. See:R. v. Adebowale (1941) 2 WACA 142. For a wife stealing the property of a husband, See R. v. Creamer (1919) 1 KB 564. In this case the wife sold her husband’s item, which surreptitiously was stolen. The court held that there was no receiving by the accused, as a wife cannot legally steal from her husband.The question arises as to what will be the position if the property allegedly received was originally obtained by a child who is below 7 years. Walters v. Lunt (1951) 2 AER 645 - where the good were received from a child below 7 years. The court held that there would be no offence of receiving because the child was not capable of stealing.Under section 429 of Criminal Code , if a person acquires a lawful title to stolen goods any other person receiving them subsequently, even knowing them to have been previously stolen commits no offence.Note that lawful title may be acquired in a sale in a market overt. See for example Section 23 SALE OF GOODS LAW CHAPTER S2 LAWS OF LAGOS STATE.The question arises as to what would happen if the goods title had been acquired and somebody received before the thief is convicted? Under section 24 of the Sales of Goods Acts the title of the bona fide purchaser extinguishes in favour of the owner when the thief is convicted. See also: Nnolim v. The State (1993) NWLR (Pt. 283) 569 at 573.Guilty KnowledgeFor there to be a conviction for receiving stolen property it must be shown by the prosecution that the prisoner at the time had the knowledge of the fact that the goods were stolen.Proof of guilty knowledge is a matter of evidence which can be proved by the testimony of the accused himself by the confession or it may be inferred from the surrounding circumstances. The court may consider all the following circumstances in inferring guilty knowledge:1.The manner of receipt which includes the time of delivery and the price paid for the goods. See Akinyede v. COP (1980) 2 NCR 90; G. Felller v. R. (1942) 9 WACA 12; in Oguntolu v. The Police, a statistics clerk with the Kingsway store, was charged with stealing a pair of shoes. The charge could not be sustained because the prosecution could not prove the ingredients of stealing but the shoes found with the clerk were the same ones found missing at the time of stocktaking. He was convicted of receiving.2.Guilty knowledge may also be inferred from the fact that the goods were sold by a person who would ordinarily not be in a position to sell them, e.g. in Lawani v. The Police (1952) 2 NLR 87, where the appellant bought tyres from a tailor, his claim that he did not know that the tyres were stolen was not accepted by the court. If the goods were sold in containers different from those in which they were normally imported or packed the court may also be in a position to infer guilty knowledge. Thus in R. v. Adebowale, guilty knowledge was inferred from the fact that bottles of gin were delivered in kerosene cases.3.Under the Evidence Act, section 46 provides for evidence of scienter. Under that section, whenever any person is being proceeded against for receiving any stolen property knowing it to have been stolen or for having in his possession stolen property, for the purpose of proving guilty knowledge, there may be given in evidence at any stage of the proceedings the fact that:i.Within the period of 12 months preceding the date of the offence other stolen goods were found or had been in his possession, he must therefore be a receivist.iiThe fact that within five years proceeding the date of the offence charged he was convicted of any offence involving fraud or dishonesty. See R. v. Griliopoulous (1953) 21 NLR 114. In this case the accused was charged with receiving stolen items from another. Evidence was given to show that they received a week earlier, some other stolen items from the person. The court held that the evidence of other instances of receiving could be used to prove the act of receiving charged. That the act of receiving charged must be proved aliunde (i.e., on its own).4.Under the doctrine of recent possession. Under section 149(a) of the Evidence Act any person who is in possession of stolen goods ‘soon after’ the theft may be presumed to be either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. This section creates a presumption against the accused person.5.Under section 4 (a, b, c,) of the Evidence Act whenever it is proved in the Act that the court may presume a fact, the court may regard such facts as either proved unless and until it is disproved or may call for the proof of it. It has been argued that section 148(a) does not shift the burden of proving guilty knowledge, that the burden still remains on the prosecution. The logic behind this argument seems to be that if the accused person offered any explanation, which might reasonably be true of how he came by the property in question and thus raises some doubt, the accused would be entitled to acquittal on the ground that the prosecution would have failed to prove guilty knowledge beyond reasonable doubt. Note also that the criminal code does not stipulate what length of time may be considered recent for the purposes of the offence. See: R. v. Opara (1961) WNLR 127. In this case the accused was found on a street near the scene of a burglary having in his possession property taken from the house broken into hours earlier. Court held that the time was sufficient to infer under the provisions of the Evidence Act in this respect. R. v. Iyakwe (1934) 10 WACA 190 where the court held that possession of shoes stolen 5 months previously was evidence that the accused received them knowing them to have been stolen but not evidence that he himself was the thief. Note that on a charge of stealing the accused person might be convicted of receiving stolen property under section 427 of the criminal code. See generally, The State v. Nnolim (1994)18 IRL.R.C.N. 1; Yongo v. C.O.P. (1992) 1 SCMJ 113 at 136; Okoroji v. The State (2002) 5 NWLR (Pt. 759) 21 at 47-48.?CHAPTER 11OBTAINING BY FALSE PRETENCES The common law crime of Larceny in its latter-day expanded form did not cover all offences of dishonesty connected with property. The modem offences of obtaining property by false pretences was a necessary statutory effort to plug a loop-hole left by the common law. Under the common law, the position was that the smart one who fraudulently persuaded someone to transfer his property to him was to be admired rather than labeled a criminal, whereas one who took possession of another’s property without his consent deserves censorship from the criminal law. Thus, the common law distinguished a swindler from a thief and treated them separately as such. In the old case of Jones v. R. (1704)2 Lord Rayrnn 1013, Holt CJ posed the rhetorical questions: “shall we indict a man for making a fool of another” This was a case in which that eminent law lord of a strange era refused to convict a man who had persuaded another to pay him 20 pounds having falsely represented that he was authorized to collect it. As time went on the obvious need arose to protect people from swindlers. Thus, in 1757 the offences of obtaining property by false pretences had been statutorily created. What is the property that can be obtained? Money and all other property, real or personal including chose in action and other intangible property may be obtained by deception.Section 419 Under section 419 of Criminal Code , when a person by any false pretence and with intent to defraud obtains from any other person anything capable of being stolen he will be guilty of obtaining property by false pretences. See also sections? 420, 421, 425 of the Criminal Code? for the offences involving fraud. Section 421 deals with cheating. In R. v. Adegboyega (1937) 3 WACA 199 the court was of the view that the common law offence of cheating which was abolished by section 32 (1) of the Theft Act 1969 in England was no longer applicable.Section 422 deals with conspiracy to defraud; See Ogundipe v. R. 14 WACA 465, where it was held that the words “by deceit or other fraudulent means” govern the whole of the Section.Section 423 deals with frauds on sale or mortgage of a property. Section 424 deals with pretending to exercise power of Witchcraft or tell fortunes.Section 425 deals with obtaining registration, etc by false pretences. See Akpan v. The Police (196) 5 FSC 3, where it was held that the false pretence need not be the sole factor operating on the mind of the person from whom the registration is procured. Note that anything capable of being stolen will be capable of being obtained by false pretences.Features That Distinguish Obtaining By False Pretence From Stealing It has not been an easy task for the law to draw a clear cut-distinction between the offences of stealing and obtaining by false pretences. The main ground of distinction seems to be that although both offences are functionally related they differ in acquisive technique.Obtaining It has been suggested that to obtain property, the property in the goods must have been obtained from the general owner or someone acting on his behalf, with his authority to pass title. See R. v. Bau (1951) 2 KB 19. Inferable from the above is that if the swindler obtains the property from one who has only a special interest in it, e.g. bailee or pledgee it would be stealing and not obtaining under false pretences. It was also held in Oshin v. IG.P (1961) 1 ANLR, that to constitute the offence of obtaining by false pretences both possession and ownership in the thing obtained must have been transferred. Where possession alone is transferred, the offence can only be stealing not false pretence. In that case the accused person pretending to be a clerk of stores helped a customer to purchase some goods from the store. The customer gave him the price he mentioned which was in fact more than the actual price of the goods. The accused pocketed the difference. It was held that what the accused obtained was merely possession of the money and not ownership which was intended for the shop owner and by keeping part of the money the accused was only guilty of stealing. See also The State v. Osua for (1972) 2 E C S L R 412. Contrast with Abasi v. C.O.P. (1965) NMLR 461. The reason for such suggestion seems to be on the ground that a bailee for reward, for instance cannot pass complete ownership and possession over to another because of the rule of law “nemo dat quod non habet” it has been suggested that if only the bailment of the property is obtained by pretence, the offence under discussion will not have been committed. R. v. Kilham (1970) 1 CCR 261, the accused obtained a hire of a horse by false pretences. He returned it without paying the cost. Held not guilty of obtaining by false pretences. The reason seems to be because, what the person obtained was a ride on the horse and not the owners entire interest in it. This case is contrastable with the English case of R. v. Boulton (1849) 1 Den 508, where it was held that a person may be convicted of obtaining a railway ticket by false pretences, even though at the end of the journey the ticket will be returned to the owner. It has been held that the offence under discussion is committed where A obtained money by false pretences, even though he had the intention to repay it. This is because of ownership in the particular money obtained R. v. Ogbonna (1941) 7 WACA 139, where the accused person obtained a loan on the security of gilded brass which he falsely represented to be gold. Also, if a customer pays a forged cheque into a bank account, and the bank credits him with the amount for the cheque, he has been held not guilty of obtaining money from bank under false pretences. See Odu v. The State (1965) 1 ANLR 25. In R. v. Logun (1959) LLR 64, the court opined that “until money has actually been handed over to a customer, property in the money remain in the custody of the bank, no matter how much the customer may be in credit in the bank.” On distinction between transfer of possession and title, Lafave and Scott are of the opinion that it could be useful in considering the problem to divide the case in two:1.Where the property obtained is something other than money2.Where the property obtained is money In the 1st case one who induces another by lies to sell to him his property obtains title and if fraud is involved the proper charge is obtaining by false pretence. Whereas if by lies one succeeds in getting a lease or loan and if fraud is involved the charge is stealing. Lafave/Scott stated that in most cases one who hands over money never expects to get that money back. No, in this case where money changes hands as a result of fraud, the wrongdoer obtains title therefore obtaining by false pretence is of course possible. Note that if the victim hands over money to a rogue who undertook to use it for a specific purpose and he does not use it for that purpose, title does not pass to the thief. See The State v. Odinmayo, where the accused persons were only convicted of stealing money belonging to the housing corporation.Inducing Delivery Obtaining is said to mean for oneself. Inducing delivery will be the proper charge to bring before the court where the rogue obtains delivery for someone else. Stealing has been described as theft or acquisition by stealth where obtaining under false pretences is acquisition of property or theft by deceit. Under Nigerian Law, the major distinguishing feature seems to be that in the offence of stealing, what the thief obtains is merely possessing while under false pretences, the swindler obtains both possession and actual title, i.e. ownership. In Oshin v. IG.P (1961) 1 ANLR, it became obvious that it is not always easy to label a particular form of dishonesty dealing with property as stealing or obtaining by false pretences. Not even the courts are immune from this confusion of distinction. In this case the accused person pretending to be a clerk of stores helped a customer to purchase some goods from the store. The customer gave him the price he mentioned which was in fact more than the true price of the goods and the accused person pocketed the difference. At the court of first instance, he was convicted of stealing. On appeal to the high court, it held that it was not stealing, but obtaining by false pretences. The reason given by the high court was that the accused person got from the customer both possession and property in the money. At the Appeal Court, it was held that what the accused obtained was merely possession of the money and not the ownership that was intended for the shop owner and that by keeping part of the money the accused was only guilty of stealing. See also The State v. Osuafor (1972) ECSLR 412. In this case a country council revenue collector was issued with a revenue collector’s receipt book for the collection of fees for bicycles licenses. He misappropriated movies he collected, having issued similar receipts, which he forged. It was held that he was guilty of obtaining by false pretences and not stealing because the payers parted with both possession and ownership. Okonkwo and Naish submit that because ownership would have been intended for the employer of the accused revenue collector, the offence he would have been convicted of would have been stealing. This case is contrastable with Abasi v. COP (1965) NMLR 46, where the appellant’s credit customer of a commercial house after receiving 10 cases of tobacco on credit fraudulently omitted to sign invoices as he used to do. He later denied that the tobacco was supplied to him. He was convicted of stealing. Okonkwo and Naish argued that the conviction would have been for obtaining under false pretences and not stealing.In R. v. Adegboyega (1937) 3 WACA 199 it was suggested that the practice known as money doubling constitutes the felony of obtaining by false pretences. It is submitted that this suggestion is good law. Based on their use of ownership and possession as criterion. O & N seemed to disagree. They rather argued that it would depend on the circumstances. It is submitted with respect, that grappling with whether possession alone or land ownership being passed, will lead to complications if not confusion. However section 174(2) (3) of Criminal Procedures Act provides that on a charge of stealing the court can convict for obtaining under false pretences and vice-versa.Note that a charge alleging obtaining by false pretences will fail if evidence shows that delivery was to another and not the accused. See R. v. A. Yero (unreported); Adeyemi v. COP (1961)1 ANLR 387. In Alake v. The State (1991) 7 NWLR (Pt. 205) 567., (supra) the court stated that the accused person must have induced the owner to transfer his whole interest to the 3rd party.“False Pretence” False pretence means a representation by word, writing or conduct, of facts pertaining to the past and present, but not to the future and which is known to the representer to be false or which he does not believe to be true. This seems to be the requirement under section 418 of the Criminal Code. In Alake v. The State (1991) 7 NWLR (Pt. 205) 567. Niki Tobi J.C.A. as he then was in defining false pretence said the word “pretence” means the act of pretending, that is to say, to make a person believe in a situation which in reality is not true. It also means an appearance or show to hide a reality, a false show, a false allegation, a sham. It also means pretension or a pretext.”Thus the representation must not relate to future conduct and must be a matter of fact, pastor present. Sometimes the representation may consist of statement of fact relating partly to the present and partly to the future. In such a situation, the offence is committed if the statement relating to the past or present is a material contributing factor inducing the representee to part with his property. Note that sometimes, a promise to do something in the future may involve a false pretence that the representor has the present means and ability to do that thing. See the U. S. case of Chaplin v. U S. 15F.- 1697 where the court stated “a promise is commonly an undertaking, but it is always an assertion of a present intent to perform. “I will” means among other things ‘I intend to’ intention is a fact and present intention is a present fact. A promise made without an intention to perform is a false statement about a present fact.”In addition, the pretence must not only be false, it must be known to the maker to be false. Therefore, if a party honestly believed in the truth of a statement, which turns out to be false, his innocent misrepresentation will not make him guilty of false pretence. Under section 419 criminal code, to be guilty of obtaining by false pretences, the pretender must have an intention to defraud. This intention is to induce another by deceit, to act to his detriment or contrary to what would otherwise have been his action. Note that it would be immaterial that the pretender had no intention to cause any pecuniary or economic loss.The Effect Of The PretenceFor the pretence to ground liability as provided for under the code, it must have induced the owner of the property to transfer it. If the owner is not deceived by the false representation; but transfers the property because of other reasons, then the offence would not have been committed. In this regard, there is always a nagging question, e.g. If A used forged certificate to secure a job and he is paid salaries, can it be said that he had obtained those salaries by false pretence or that his pretence merely landed him a job? The Criminal Code unfortunately does not provide felicitous answers to such problems. See Omotosho v. The Police (1961) 1 ANLR 693. where a Police constable alleged that a clerk at UCH, Ibadan got his job by falsely representing that he had passed an examination. The clerk was merely convicted of attempting to obtain goods by false pretences.Obtaining Credit By Fraud Under the Debtor’s Act 1869 (UK) section 13, a party who obtains credit by falsely representing that he will pay money for services rendered to him or goods supplied to him, etc. is guilty of an offence. Note that under this section, there will be no requirement that the false representation must relate to past, present or future matter. Under section 419B Criminal Code of Lagos State by courtesy of section 2 Criminal Procedure (miscellaneous Provisions Decree), 1966, if property or credit is obtained by means of a cheque, which on presentation within a reasonable time is dishonoured on grounds of insufficient funds, the property or credit shall be deemed to have been obtained by false pretences unless the court is satisfied that when the accused issued the cheque, he reasonably believed that it would be honoured on presentment.Cheating: Section 421 Criminal Code It is not necessary in proving a charge under this section to show that the delivery of goods was obtained in circumstances that amounted to stealing. Seethe cases of R. v. Lababed (1959) 4 F.S.C. 48 and Ireto v. The Police (1959) 4. F.S.C. 57 Quare. Considering the alarming and embarrassing magnitude of the offence of obtaining under false pretences particularly the advance fee fraud popularly called “419” is it not necessary that Nigerian law makers should take more than ordinary interest in this aspect of criminal law? Also considering the confusion attendant on the interpretation of the code, particularly in distinguishing between offences of obtaining and stealing, it would have been necessary to take a critical look at the position in England and America with a view to making the provision of the code more elaborate responsive and meaningful.?CHAPTER 12BURGLARY AND HOUSEBREAKINGAny person, who breaks into any part, whether external or internal of a building, or opens by unlocking, pulling, pushing, lifting or by any other means whatsoever, any door, windows, shutter, cellar flap or other thing intended to close or cover an opening in a building or an opening giving passage from one part of the building to another is said to break into the building and is guilty of a felony. If the offence took place in the day time, it is called house-breaking and is punishable with imprisonment for 14 years. If the offence is committed by night, it is burglary and is punishable with imprisonment for life. See sections 410 and 411 Criminal Code From the foregoing, it appears that time is the main distinguishing feature between house-breaking and burglary. It has held that for purposes of the section, night means 6:30pm to 6:30am. See Akoka v. C.O.P (1950)13 WACA 43. In the English case of R. v. Smith (1820) R and R 419; it was laid down as a rule, that for a breaking and entry to constitute burglary, both acts (i.e. the breaking and the entry) must be done at night. In that case, X broke part of a dwelling house for purpose of entering on a Friday night and entered the house on Saturday night.Note also that breaking is an essential ingredient of the offences of Burglary and House-breaking. Although breaking may be actual or constructive. If there is no breaking at all, e.g. if the door was left open and a thief walks through, the offences of burglary and house-breaking cannot ground. See The State v. Onwemunlo (1967-68) M.S.N.L.R. 137.Actual breaking in first paragraph of section 410 is when there is physical breaking of any part of a building, external or internal or opening by unlocking, pulling, pushing, lifting or by any other means whatsoever, any door, window, shutter, cellar flap or other thing, intended to close or cover an opening in a building giving passage from one part of the building to the other. Constructive breaking on the other hand refers to obtaining entry into a dwelling house by means of any threat or artifice used for that purpose.See section 410 Criminal Code? Par. 3.EntrySee also R. v. Apesi (1961) WRNLR 125 for the definition of entry (Par. 11 section 410) “Entry occurs if any part of the accused body or any part of any instrument used by him is within the building or dwelling house.” Thus in Apesi, it was held that the requirement of entry had been met, when in the process of opening a window the accused’s hand or finger entered the room. Smith & Hogan seems to be of the view that the common law rules relating to “entry” in English law had become rather technical, even though the British parliament still approved of the rules. See section 9, Theft Act 1968. Under the common law, entry is when:a.Any part of the accused person’s body is within the building.b.The insertion of an instrument for the purpose of abstracting property, not “if inserted merely to further the entry of the accused.”In R. v. Collins (1973) QB 1000, the court seemed to have played down the technical common law rules by directing the jury that unless the accused person made “an effective and substantial entry, he ought not to be convicted of burglary.” In that case, no reference was made to the common law rules. It appears that the decision in Collins was welcome at least as a step further than the common law rules. Thus, presently in English law, the position seems to be that the actus reus of burglary is the entry of X into a building as a trespasser (i.e X would not have been invited into the building). The mens rea also seems to be that X knew that he was a trespasser or was reckless as to the facts constituting him a trespasser.In Collins, the accused person, having discovered that the complainant was lying asleep, naked on her bed, stripped off his clothes and climbed unto the window sill of the bedroom. At that moment, the complainant awoke, mistakenly believing that the naked form at the window was her boyfriend, beckoned the accused in. He got into the complainant’s bed and it was only after the accused had intercourse with her that she realized her error.Edmund Davies C. J. laid down the broad requirement for entry, thus:“There cannot be a conviction for entering premises as a trespasser within the meaning of section 9, unless the person entering does so, knowing that he is a trespasser and nevertheless, deliberately enters, or at the very least, is reckless whether or not he is entering the premises or another without the party’s consent.”Thus, based on the facts, liability of the accused revolved on where he was at the time of the complainant’s invitation. The court was of the view that the accused cannot be a trespasser if he honestly believed he had been granted right of entry.Note that the requirement of being a trespasser introduces the broader issues of possession and trespass in law of torts. Trespass being an interference with possession, the burglary can only be committed against the person in possession of the building or part thereof entered.Where the premises is let, the burglary is committed against the tenant and not the landlord. Even if the tenant is only a tenant at will he can maintain trespass. So also a deserted wife, even if she has no proprietary interest in the matrimonial home - National Provincial Bank Ltd. v. Ainsworth (1965) A. C. 175. Note that the guest at a hotel does not usually have possession of his room nor does a lodger, thus, burglary can only be committed against the landlord or the hotelier. Although the terms of the contract may indicate otherwise. It is worthy of note that this development in English law may be of interest in Nigeria in interpreting and/or elaborating the meaning of “entry” under section 410 paragraph 2 Criminal Code? This is notwithstanding the view of Bairamian, J. in Ogbuagu v. The Police, that the provisions of the code are complete and exhaustive.Another fundamental requirement of house-breaking or burglary is that the place where the offence is committed must be a dwelling house. S. 1 Criminal Code? defines dwelling house to mean “any building or structure or part ofa building, which is for the time being kept by the owner or occupier for residence therein of himself or his family or servant or any of them. It is immaterial that it is from time to time uninhabited. A building or structure adjacent to and occupied with a dwelling house is deemed to be part of a dwelling house if there is communication between such building or structure and the dwelling house either immediate or by means of a covered and enclosed passage but not otherwise.”The test of a dwelling house is not what the house was originally built for but what it was being used for at the material time of breaking and entering. Note section 343 Panel Code provides for house trespass. Under the provisions, the introduction of any part of the trespasser’s body into the house is sufficient entry.Section 350 provides for house trespass with intent to commit an offence punishable with death.Section 351 provides for house trespass with intent to commit an offence punishable with 14 years imprisonment.Section 352 provides for house trespass to commit an offence punishable with imprisonment.Section 353 provides for house breaking, lurking and house trespass.??CHAPTER 13DEMANDING WITH MENACESAny person, who with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him by the offender or by any other person if the demand is not compiled with, is guilty of a felony and is liable to imprisonment for three years: section 406 Criminal Code As to the nature of the property demanded, Okonkwo and Naish have argued that even though section 406 was not specific since the appropriate mental element would be an intent to steal, only things capable of being stolen can be the subjects of the offence under section 406. See S. 383 Criminal Code? for definition of stealing and section 382 for things capable of being stolen.As to what our courts should construe as the meaning of “threats of an injury or detriment of any kind,” Aguda and Madarikan in their book at page 2080 had suggested the rather simplistic approach of equating the above phrase to the meaning given to the word “menaces” in English Criminal Law (See Aguda and Madarikan, Criminal Procedure of the Southern States of Nigeria); See also: Thorne v. Motor Trade Association, (supra), Lord Atkin said “… the ordinary blackmailer normally threatened what he has a perfect right to do, viz to communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed, he has not only the right, but also the duty to make the disclosure as of a felony to the competent authorities. What he has to justify is not the threat but the demand of money.”In Osidola v. C. O. P (1958) NRNLR 42. The accused person who was an IPO in a case of stealing a cheque was questioning the complainant who knew it, whether he had such knowledge. The complainant denied any knowledge of the cheque. The accused took him to police station and said: “You know that whether you are guilty or not, if I take you to the charge office you will be locked up until the investigation ends. Instead of being locked up in the cell for nothing, if you are not guilty you should try and give me 20 pounds.”The complainant gave part of the 20 pounds. The court found the policeman guilty under section 406. See the case Yusuf Tudun Wada v. I.G.P (1957) NRNLR, where the first appellant who was a police constable and the 2nd appellant who was a civilian demanded money from a witness with a threat that they would search his house and take him to the police station. The witness paid the money. It was clear that the appellants while taking the money, intended to deprive the witness of it permanently, that being so, with the meaning of section 383 Criminal Code , they took the money fraudulently and could have been prosecuted for stealing. Held: Their conduct amounted to an offence under section 406 Criminal Code? See also Edo & Osakabor v. The Police (1962) 1 ANLR 92.Held: That a threat to imprison a man on a fictitious charge is a threat of detriment worthy of note that as long as threats are to be understood as calculated to deprive a person of reasonably firm and sound mind of the voluntary and free exercise of his mind “the offence is complete as soon as the demand is made.”It is therefore not necessary to show that the victims mind was actually unsettled or that the demand actually led him to part with his property. See: Ededey v. The State (No. 2) (1964) 1 ANLR 117; see also the earlier much criticized case of Omotosho v. The Police (1961) 1 ANLR 693. Here, the appellant, a police constable, after investigation and finding out that an allegation of commission of a crime by the complainant was false, nevertheless, demanded money from the complainant so as not to charge him with the offence. The complainant sought and obtained marked money which he offered the constable and which he accepted and was promptly arrested. The constable was convicted at first instance of an offence under section 406. The court of appeal stated inter alia “the threats could not and did not in any way operate on the prosecuted but also aware, according to evidence that the appellant knew very well that he committed no offence.” Okonkwo and many other writers have vigorously flayed this decision. In Ogundowale v. C.O.P. (1971) 1 ANLR 32, the Supreme Court considered The Ededey v. The State (No. 2) (1964) 1 ANLR 117and Omotosho v. The Police (1961) 1 ANLR 693.cases and attempted to reconcile them. It is submitted that while Ededey is good law any day, the same may not be said of Omotosho.The controversy was laid to rest in the case of Echeazu v. C. O. P (1974) 1 ANLR, where it was held that even if the complainant was not moved by the threat, or he in fact parted with the money in order to arrest the accused, the offence has been committed. See R. v. Kalio (1943) 9 WACA 28, where the threat by the accused to commit suicide by hanging in the complainant’s house unless she paid him the sum of 2 pounds, was held to be a threat of detriment.Note also that a claim of right made bona fide negates an intent to steal, e.g. if a person threatens to demand property which in fact belongs to him, and over which the victim has no special property, no offence under Section 406 Criminal Code? would have been committed. See:I.G.P. v. Emeozo (1957) WNLR 213. Here, A demanded money from B for committing adultery with (A’s) wife and threatened to sue B for compensation if the money was not paid. A was convicted of demanding property with threats, with intent to steal. On appeal, the court considering the defence of bona fide claim of right, held quashing the conviction that even if adultery was not committed, A had a good defence since he was asserting what he honestly believed it to be a lawful claim.Note that the defence of bona fide claim of right even though provided for under section 23 Criminal Code , Nigerian courts most times refer to its definition in the English case of R. v. Bernard (1938) Cr. Rep. 137.As to what amounts to a demand; See R. Y. Studar (1915) 11 CAR, where it was held that while a mere request without conditions would constitute a demand, a request imposing conditions may come within the meaning of a demand. See R v. Treacy (1971) AC 537 where it was held that a demand made in writing is complete upon posting; it is immaterial that it had not been communicated to the victim. See section 407 Criminal Code:In R. v. Morgan (1952) 26 CAR 10, where it was held that there cannot be a verdict of attempting to demand, there is either a demand or there is not.?CHAPTER 14ROBBERYRobbery is an aggravated form of stealing. Consequently, stealing is an essential element of robbery. See 401 Criminal Code , which provides that any person who steals anything and at or immediately before, or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen, or to prevent or overcome resistance to its being stolen or retained, is said to be guilty of robbery.From the above, it is clear that assault is also an essential requirement of robbery. In other words, robbery consists of stealing accompanied by the use of or the threat of use of violence to any person or property.Note that stealing envisaged, embraces both stealing by taking and stealing by conversion. R. v. Bekun (1941) 7 WACA 45. The appellants were charged and convicted of robbing the victim of one box. The box had earlier been deposited in the house of the 4' Appellant. The depositor left the house to buy something in a nearby shop. He was later followed and attacked by the appellants. Immediately after the attack they all went to the house of the 4th Appellant where they shared the content of the box. Held that the offence of robbery is committed where there is the use of actual violence on the owner of the goods immediately before the stealing and there need to be use of violence at the time of stealing. The conduct of the appellant did not seem to conform to stealing by taking but stealing by conversion. Note that if the threat of violence is incapable of execution as where a toy gun is used or an unloaded gun is used, the offence is nevertheless committed provided the circumstances are such that a reasonable man would anticipate violence: Babalola v. The State (1970) 1 ALL NLR 44; where it was held that where a person threatens another with a gun the natural interference is that the threatened person would receive actual violence. He could not be expected to ask the person threatening him to show him whether the gun was loaded or not as to determine whether he was put in fear or not. In Otti v. The State (1993) 5 SCNJ 143; the court held that threat of actual violence as required by the law must include the very situation of helplessness whereby the victim had no option but to comply with all the commands of the assailant.Note that there can be no robbery if the complainant is not present or violence or no application of actual violence to his person: Ugboaja v. CO.P (1963) 7 ERNLR 153.To constitute robbery, the force used by the accused must have been applied at the time or immediately before or after the time of stealing. Consequently, where the force used was applied well after the time of stealing this cannot amount to robbery: Njuguna v. R. (1965) EALR 583.Although in robbery cases, the violence by the accused person is usually directed against the owner of the property, the offence is nevertheless committed where the violence is directed against another person who is not the owner of the property. Also s. 401 extends to use of violence against the property itself, not only against the owner.As a result of the alarming rate of armed robbery incidences after the civil war, various laws were enacted to provide severe punishment and more speedy trials. These culminated in the enactment of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990. The Act, apart from the offence for robbery, created an additional offence for “armed robbery” s. 1 (2) provides that if any offender at the time of robbery is armed with any firearms or any offensive weapon, or is in company with any person so armed or at or immediately before or immediately after the time of robbery, the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction to sentence by death. Robbery under the Act attracts 21 years imprisonment.For the element of armed robbery see Martins v. The State (1997) 1 NWLR (Pt. 481) 355; Imasuen v. Amissah (1996) 8 NWLR (Pt. 467) 453; Alor v. The State (1997) 49 LRCN 942; Okosun v. A. G., Bendel State (1985) 11 S. C. 194; Iyaro v. The State (1988) 1 NWLR (Pt. 69) 256.?CHAPTER 15FORGERY The definition of the offence of forgery is contained under s. 465 Criminal Code? which provides that forgery is committed when a person knowingly makes a false document or writing with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person or with intent that any person may in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Nigeria or elsewhere. See also s. 363 P.C. the ingredient of the offence are:1.That there is a document or writing2.That the document or writing is false3.That the forgery is by the accused person4.That the accused knows that the document or writing is false5.That he intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine. See Alake v. The State (1991) 7 NWLR (Pt. 205) 567. The meaning of document or writing is contained in s. 403 Criminal Code? which defines a document to include any material used for writing or printing capable of conveying a definite meaning to persons conversant with them; but does not include trademarks on articles of commerce. It also includes writing based on wood, stone or metal. A document is said to be false if the whole or part of it is false. s.465 Criminal Code? defines the term make a false document or writing to include altering a genuine document or writing in any material part either by erasure, alteration, removal or otherwise, and making any material addition to the body of a genuine document or writing and adding to a genuine document or writing any false date; attestation, seal or other material matter, s. 464 further defines 4 ways in which a document may be false:a.In the case of a document which is a register or record by lawful authority, or an entry in any such register, or which purports to be issued by lawful authority as testifying to the contents of any register or record kept by lawful authority or as testifying to any fact or event; if any material particular stated in the document is untrue. Thus, to tell a lie in a document required to be kept by lawful authority or government is forgery; See Etim v. R. (1964) 1 ANLR 38 held that an untrue statement in a writ that an order of court had been obtained to sell the defendant’s immovable property rendered the writ a false document.b.If the whole or some part of the document or writing purports to be made by or on behalf of some person who did not make it or authorize it to be made; or if in case where the time or place of making is material, although the document or writing is made by or by the authority of the person by whom it purports to be made, it is with fraudulent intent falsely dated as to the time or place of making; orc.If the whole or some material part of the document or writing purports to be made by or on behalf of some person who does not in fact exist; R. v. Domingo (1963) 1 ANLR 81; Odu v. The State (1965) 1 ANLR 25.d.If the document or writing is made in the name of an existing person, either by that person himself or by his authority with the fraudulent intention that it should pass as being made by some person real or fictitious, other than the person who made it or authorities it to be made. See also S. 362 Penal Code? In Agbeyebe v. I.G.P. (1955) 15 WACA 37, it was held that signing of a document in the name of another makes the document false. Insertion of a document of false date or place of making where these are material amounts to forgery: R. v. Wells (1939) 2 All ER 109. In Bank of America (National Trust & Savings Association) v. Nigerian Travel Agencies Ltd. (1967) 1 ANLR 156; the accused signed a cheque on behalf of his employers after his authority to sign cheques was withdrawn and dismissed from service. Held that there was forgery because the cheque was purported to have been made on behalf of someone who did not authorize it to be made. See also R. v. Chiedozie (1961)5 ENLR 75.Note that the forgery must be by the accused person; See Alake v. The State (1991) 7 NWLR (Pt. 205) 567.? ................
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