More than 400,000 people die globally from murder or culpable homicide each year. In Nigeria, murder, culpable homicide and attempt to murder are becoming alarmingly prevalent, generating public interest in existing laws that protect and prevent arbitrary deprivation of the constitutionally guaranteed right to life.
Two criminal law regimes are in operation in Nigeria; the Penal Code and Criminal Code. The Penal Code operates in the northern states of Nigeria and the Criminal Code operates in the southern states of Nigeria. In the Southern part of Nigeria, the offence of intentionally killing a person is termed “murder” under the Criminal Code, whereas in the Northern part of Nigeria same offence is termed “culpable homicide punishable with death”.
Where killing is unintentional in the southern states, it is termed “manslaughter” and in the Northern states, it is termed “culpable homicide not punishable with death”. Where an unsuccessful attempt to kill is made, it is called an “attempt to murder”. This article will look at the legal definitions and general principles of the offences of murder, culpable homicide and attempt to murder and how the courts have applied these principles.
What is the Difference Between Murder, Culpable Homicide and Attempt-to-Murder?
Meaning of Murder, Culpable Homicide and Attempt-to-Murder in Nigeria
Section 316 of the Criminal Code defines the offence of murder as follows:
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances that is to say:
(a) If the offender intends to cause the death of the person killed, or that of some other person; (b) If the offender intends to do to the person killed or to some other person some grievous harm;
(c) If 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;
(d) If the offender intends to do grievous harm to some person for the purposes of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(e) If death is caused by administering any stupefying or overpowering things for either of the purpose last aforesaid;
(f) If death is caused by willfully stopping the breath of any person for either of such purpose, is guilty of murder.
The offence of Culpable Homicide punishable with death is defined generally under section 220 of the Penal Code, thus:
“Whoever causes death:-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing a rash or negligent act to commit the offence of culpable homicide.”
Section 320 of the Criminal Code, defines an Attempt to Murder as follows:
“Any person who: (a.) Attempts unlawfully to kill another; or (b) With intent unlawfully to kill another, does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life.”
Proving Murder, Culpable Homicide and Attempt-To-Murder
The onus is always on the prosecution to prove that the accused person caused the death of the deceased, and it is not considered sufficient evidence to show that the accused did an act or made an omission that could have caused the death.
The ingredients of the offence of culpable homicide punishable with death are: (a) That the deceased had died; (b) That the death of the deceased was caused by the accused (Actus Reus), and (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence (Mens Rea). The proof of these is proof beyond a reasonable doubt, which does not mean proof beyond the shadow of a doubt.
However, on a charge of murder, the fact that the corpse is not found is immaterial because death is a fact that can be proved by circumstantial evidence. In other words, a corpse must not exist before an accused can be convicted, for where there is strong circumstantial evidence and where the prosecution succeeds in fixing the accused as the killer of the deceased, the only thing to consider is whether there is positive evidence that the victim is dead.
A pertinent question that often arises is the criminal responsibility of an accused person under the age of a minority. By virtue of section 30 of the Criminal Code, a person under the age of 7 years is not criminally responsible for an act or omission, so also a person under 12 years but not less than 8 years, unless it is proved that at the time of doing the act or omission, he had the capacity to know that he ought not to do the act or make the omission. By virtue of section 319 of the Criminal Code, any person who commits the offence of murder shall be sentenced to death.
However, where the offender who in the opinion of the court has not attained the age of 17 years has been found guilty of murder, such offender shall not be sentenced to death but shall be ordered to be detained during the Governor’s pleasure. However, while in Lagos State and the States of Eastern Nigeria, the relevant age is at the time of the commission of the offence, in West and Northern Nigeria the relevant age is at the time of conviction.
Like murder and culpable homicide, the burden of proving an attempt to murder is on the prosecution. The Courts have held that to constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. It means that the act proved against an offender must be such as would show that he did all he needed to do to complete the act before it was stopped.
Judicial Attitude in Nigerian Courts
In the case of State v. Usman, the provisions of sections 221 and 222 of the Penal Code were considered. In the instant case, the accused was charged under section 221 (a) of the Penal Code for the offence of culpable homicide punishable with death for killing his wife, Aminatu Babawuro.
The PW1, one Abubakar Bakari who was the houseboy of the accused testified that one Saturday night in the month of May 1970, he heard the deceased wife crying. When he was later invited by the accused into the parlour, he saw the lifeless body of the deceased lying in a pool of blood. The accused then asked him to carry the corpse into a grave already dug by the accused and warned him not to tell anybody that he killed his wife.
A post-mortem examination of the body of the deceased by PW6, a medical doctor showed that death was caused by severe loss of blood as a result of an injury on the neck which might have been caused by a sharp object. The accused denied the charge of killing his wife but said nothing about the testimonies of PW1 and PW6.
The trial Court in its judgment found the accused guilty of the offence of culpable homicide not punishable with death under section 220(b) of the Penal Code but punishable under section 224 of the Penal Code, and so sentenced him to 11 years imprisonment.
The trial court found however that the accused did not come under any of the exceptions in section 222 of the Penal Code dealing with culpable homicide not punishable with death. It pointed out that the prosecution could not prove that the accused had the requisite mens rea for he failed to prove that the accused knew that his activities would cause the death of the deceased, and again that PW1’s evidence was not enough to prove that the accused actually dug a grave in his compound preparatory to killing his wife.
Dissatisfied with the judgment of the trial court, the prosecution appealed to the Court of Appeal contending that it proved beyond reasonable doubt the guilt of the accused as charged. The accused equally cross-appealed.
Unanimously allowing the appeal and dismissing the cross-appeal, the Court of Appeal held that the evidence of PW1 and PW6 established adequately that the accused actually intended the killing of the deceased, and that the accused did not come under any of the exceptions under section 222 of the Penal Code to make the trial court return a verdict of guilt for culpable homicide not punishable with death instead of culpable homicide punishable with death as charged.
In State v Iloduba & Ors (2020) LPELR-50593 (CA), the court was called upon to interpret Section 275 (b) Criminal Code Cap 36 Vol.2, Revised Laws of Anambra State. In this case, the first and third respondents (Obodoechina Iloduba and Chukwunonso Iloduba) seized and held the arms of one Lawrence Iloduba.
The 2nd respondent (Nwokike Egwuatu Iloduba) went to his house, brought out a machete and deliberately macheted Lawrence Iloduba on the head and hands. Blood was oozing out, which alerted people nearby to the scene of the incident. The wife of Lawrence Iloduba, on hearing the noise rushed to the scene and raised the alarm. Then one Kenneth Igweze intervened and rescued Lawrence Iloduba who seized the opportunity to escape from his assailants with the help of a commercial motorcyclist who took him to a nearby Police Station.
The respondents as accused persons were arraigned before the trial Court and they pleaded “Not guilty” to the charge. Witnesses were called and evidence was adduced with various documentary evidence admitted.
In the Court’s s judgment, after reviewing the documentary and oral evidence adduced before it, they accepted the credible evidence adduced by the prosecution. The Court, however, held that the prosecution failed to prove intent to kill but instead proved intent to do grievous bodily harm. Aggrieved by the trial Judge’s decision, the prosecution filed an appeal on a lone issue viz: Whether the trial Court was correct when it held that the prosecution did not prove intent to kill, which is an essential element of the offence of attempt to murder brought against the respondents?
In resolving the issue, the Court held that, from the provision of the law under which the respondents as accused persons were charged, the requirements in a charge of attempted murder are “Attempts unlawfully to kill another.” OR “Attempts unlawfully to kill another; or (b.) With intent unlawfully to kill another, does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life.”
Because of the word ‘or’ these two requirements are disjunctive and not conjunctive, meanings; either of the two requirements can suffice to prove attempted murder. However, when the two ingredients are considered together it results in actus reus (attempts to unlawfully kill another) and mens rea (intent unlawfully to kill another).
Thus, to constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. It literally means that the act proved against an offender must be such as would show that he did all he needed to do to complete the act before it was stopped. The Court of Appeal held that it is obvious that there was an attempt to commit the offence of attempted murder.
In conclusion, the Nigerian Penal and Criminal Codes’ provisions on murder, culpable homicide and attempt to murder have remained the same over the years although the courts have tried to give them life by broad interpretations. However, recent legislation like the Administration of Criminal Justice Act of 2015 has put in place modalities to improve criminal proceedings and the Administration of Criminal Justice in Nigeria.
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