JUDICIAL ATTITUDE TO HOMICIDE IN NIGERIA

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

The Nigerian Criminal law is essentially contained in two codes, the Criminal Code operating in the southern part and the Penal Code operating in the Northern part of Nigeria.

Although, the Criminal Code and the Penal Code contains the bulk of the Criminal law of Nigeria and it’s the general principles, there are nevertheless, a large number of other enactments which create offences. These consist of Acts, Ordinances, Laws, Regulations, and Bye laws. A general observation which has to be is that, in the absence of specific provisions to the contrary in each statute, the general principles in the Criminal Code and Penal Code are made use of in interpreting such other statutes.

However, what makes homicide unique are, among other crimes, the uniqueness of causing personal injuries and destruction of properties are irreversible harms, causing death is a harm of different order. Killing another human being is not only a worldly deprivation, in the western assault on the sacred natural order.

Though we are inclined to think of homicide as merely the deprivation of secular interest, the historical background of desecration is essential to an adequate understanding. For example, consent is not a defence to homicide and destruction of property. The reason being that the religion conception of human life still prevails against the modern view that life is an interest that the bearer can dispose at will.

There are three prominent starting places for thinking about criminal liability. In the pattern of manifest criminality, the point of departure is an act that threatens the peace and order of the community life. In the theory of subjective criminality, the starting point is the actor’s intent to violate a protected legal interest. In the law of homicide the focal point is neither the act nor the intent, but the fact of death.

From this central point, the perspective is who can be held accountable, and in what way for the discretion of the human and divine realm. The question is never where to place the point of the legal compass, but how should the person being brought in to stand responsible for the death that has already occurred.

1.1.0: BACKGROUND TO THE STUDY.

Crime has been defined as acts or omission which renders the person doing the act or making the omission liable to punishment. It can also be defined as an act which is

illegal or an illegal omission to act, there is legal obligation to act. Homicide is an heinous crime, which have been regarded as a grave offence from the earliest times.

It is often said that the cardinal principle of Criminal Law especially as it affects homicide generally is the maxim... Actus non facit reum nisi mens sit rea meaning an

act does not make a person legally guilty unless the mind is legally blameworthy1, this principle is applicable in Nigeria. The concurrence of Actus reus and Mens rea in the proof of homicide is very important.

However, the proof of mens rea (intention) has become so technical over the years that though a person accused of an offence must have had a malicious or guilty mind. At same time the mind need not be malicious in the conventional sense.

1.2.0: OBJECTIVES OF THE STUDY

The crime homicide has become a thing of daily call in the Nigerian Courts, which calls for proper attention considering decided cases which shows the rigidity of the proof of homicide, which needs to be loosed i.e. made less rigid. Once the act (actus reus) can be proven this should be enough to convict the accused except in cases of defence of property and other defences available under lawful homicides.

1 Young Husband v Luftig [1949]2 KB 345 AT 370

The sentence for murder in Nigeria needs urgent attention especially in the aspect of death penalty because the taking of life of the person who did the act does not bring back the deceased to life, more viable punishments must be adopted.

1.3.0: FOCUS OF THE STUDY

The focus of this study is how the Courts treat homicide cases generally, the definition of homicide. However, this research focuses on the effectiveness of Courts in deciding cases of homicide brought before them. Also how the Courts can improve on deciding cases pertaining to homicide i.e. the Criminal Justice System in Nigeria.

1.4.0: SCOPE OF THE STUDY

The scope of this study covers homicide cases, the elements that constitutes, homicide the sections that that generally governs homicide, what distinguishes murder from manslaughter.

The views of jurists and learned personalities with their points and criticisms been noted with regard to past cases, and finally the Court’s opinion on homicide cases will also be reviewed and extensively discussed.

1.5.0: METHODOLOGY

This essay is expository in nature and in view of this, secondary sources like law reports, law textbooks, law journals. While the primary sources are the Nigerian legislation most essentially the Criminal Code and Penal Code, English Law such as the Homicide Act 1957 and the Theft Act, which are relevant to this topic, have been consulted.

1.6.0: LITERATURE REVIEW

The quest for a better and easier enforcement of homicide laws has drawn the attention of writers to the subject at one time or the other. However writers have written on the concept of homicide and the enforcement of its laws.

None has critically examined the judicial attitude to homicide in Nigeria, putting into

consideration the effectiveness of the Criminal Code2 and the Penal Code3.

Okonkwo in his work4 provides a comprehensive and authoritative coverage of the concept of Criminal Law in Nigeria, but the work is limited to 1979 Constitution

1. Cap C38 LFN 2004

1. Cap P3 LFN 2004

1. Criminal Law in Nigeria (2nd ed. Spectrum Books Limited 2005)

because at the tim

e the book was published in 1980 but the has been reprinted till

2005 but never edited to include the both the 1999 Constitution5 and LFN 2004.

Kenny in his book6 made critical approach on the Criminal Law of England, with his submission on the meaning of crime, and how a person could be deemed to have died in law. Under his submission on the meaning of crime he defaulted by writing that crime can only be remissible by the crown.

Clarkson C.M.V and Keating H.M7 in his book talked about constructive malice, where a police man is killed in the resisting of the arrest and killing in the arrest of committing an arrest for felony. I align myself with his submission.

M.A Owoade8 in his book talked extensively on the crime of homicide particularly Nigeria, he also examined the a year and a day rule and he explained how it is been calculated and its relevance under the Nigerian Criminal Code. His submission is

actually useful to this study. Smith and Hogan9 made submissions on the actus reus and mens rea of different crimes i.e. how different crimes can be differentiated

1. Cap C23 LFN 2004

1. Outlines on Criminal Law (19th ed. Turner JWC Cambridge 1962)

1. Criminal Law: Textbooks and materials(5th ed. Sweet and Maxwell 1993)

1. Law of Homicide in Nigeria (3rd ed. University of Ibadan Press 1995)

1. Criminal Law Cases and Materials (8th ed. Butterworths 1993)

through its mens rea and actus reus. His submission is a very relevant one on the issue of crime.

Glanville Williams10 a notable legal writer made his submission on the meaning of crime saw crime has an act or a legal wrong which is capable of being followed by Criminal proceedings which may result in punishment. His write up is a valid one which would be in existence and useful till eternity.

Curzon L.B11 in his book noted the issue of mens rea, and he said the test for mens rea could either be objective or subjective. He also submitted that mens rea can be inferred either in the case or the circumstances surrounding the case. His submission is a very relevant one which has been used in the cause of this study.

Dambazau A.B12 in his book where he discussed punishment has been an important aspect of Criminal Law, and the infliction of suffering on the person who has committed the crime. His opinion on punishment is very true because the law fixes punishment for crimes committed.

From the foregoing it can be deduced that the above writers have given their opinions in their various capacities which has contributed immensely to this study.

1. Textbook on Criminal Law(2nd ed. London Stevens and Sons 1993)

1. Criminal Law (8th ed. Pitman Publishers 1997)

1. Criminology and Criminal Justice (2nd ed. Nigerian Defence Academy Press 2007)

1.7.0: DEFINITION OF TERMS

Actus Reus – the essential conduct of element of a crime that must be proven to secure a conviction.

Mens Rea – the state of mind that the prosecution must prove to have had at the time he committed a crime in order to secure a conviction.

Homicide – the killing of a human being by another human being

Strict liability – liability for a crime that is imposed without the necessity of proving mens rea with respect to one or more of the elements of crime

Provocation – conduct or words causing someone to lose his self control.

Burden of Proof – the duty of a party to litigation to prove a fact or facts in issue.

1.8.0: CONCLUSION

The foregoing chapter has attempted a general introduction of this project, it takes us into a kind of preamble of what to expect in this study. It also explains what informed the choice of this topic. It also explains the various literatures explored in this work, contributions of these authors works to the field of Criminal Law especially homicide