Notes on Criminal Law II

OFFENCES AGAINST PROPERTY

This category of offences includes those that involve criminal interference with the
property of another especially without the consent of that other person duly had and
obtained. It incorporates offences such as theft, stealing, demanding with menaces,
cheating, obtaining by false pretences, receiving stolen property, burglary, house breaking,
robbery and armed robbery.

STEALING/THEFT

SS. 382 – 390 CC define and punish the offence of Stealing while SS. 286 & 287 PC define
and punish the offence of Theft. Both offences have their root in the old English offence
of Larceny which was found to be inadequate as a person was not deemed to have committed
an offence under that law until he had carried away the thing alleged to have been stolen.
In order to right this deficit, the parliament enacted the Theft Act of 1968 which punishes
an offence of Theft much similar to Stealing under the CC and Theft under the PC. See
particularly SS. 1(1), 4 & 7 Theft Act.

The offences of Stealing and Theft are quite different however as several instances that
may amount to an offence under the one may not be criminal under the other. They would
therefore be considered separately.

STEALING

Any person who fraudulently takes anything 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. See S. 383(1) CC.

Actus Reus

The actus reus of the offence of stealing consists in taking or converting a thing capable of
being stolen. In order for a thing to be taken, it need not be carried away. It suffices if the
thing is moved by the accused. See S. 383(6) CC. See CORCORAN v ADERTON where the
accused, intending to steal a woman’s handbag, tugged it out of her grasp and it dropped to
the ground. When she raised an alarm, the accused ran away empty handed. The court
convicted them on the basis that their actions amounted to taking.

Conversion on the other hand is not defined under the code although it may mean dealing
with goods in a manner inconsistent with the owner’s right in such a manner or with intent
to deny the owner’s right or assert a right inconsistent with the owner’s right. It may consist
in destroying, using, pledging or altering the property of the other although, such conversion
must be to the use of the accused or that of any other person. Conversion is equivalent to
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appropriation as used under the Theft Act. It must be noted that merely borrowing or using

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Notes on Criminal Law II

another’s property without taking it away does not amount to conversion. An act may amount
to conversion though where the thing converted was not taken for the purpose of conversion
or where the thing was already in the possession of the accused e.g. A borrows B’s phone
with the intention of returning it immediately but then later pledges it as security for a
debt or sells it without B’s consent. A has stolen the phone. In OSHINYE v C.O.P, the
accused obtained goods from someone by lying that he had the authority of the owner to do
so but without intent to convert the goods to his use. When he later appropriated the goods
to his use, he was convicted for stealing.

Inherent in the offence of Stealing is taking without the consent of the owner. While the
CC does not specifically provide this, it must be implied. This was the holding of the court
in EJUREN v C.O.P (1961) 1 All NLR 478. In LAWRENCE v M.P.C, an Italian student who
understood no English entered into the accused’s cab and gave him a paper upon which his
intended destination was written. The accused misrepresented the distance as being farther
than it actually was and when, on getting to the destination, the student offered him a one
pound note, he said it was too small and took a further six pounds from the student’s open
wallet. When he was charged for theft, he contended that he took the money with the
victim’s consent but the court convicted him on the ground that there was theft
notwithstanding the consent. See also R v RADER. An implication of this is that a finder of
lost property or things that appear to be without ownership cannot be said to be said to
have stolen them especially if the accused does not know the owner or has taken reasonable
steps to find the owner or reasonably believes the owner cannot be found. In R v HANCOCK,
the accused found some ancient coins at a historical site. The rule was that such findings
should be reported to the coroner who would then decide on the treasure as ownership would
automatically pass to the crown in such cases. The accused did not do this and was charged
for theft. See also S. 383(5) CC. Even where consent of the owner is obtained, the accused
would still be liable for stealing if he deals with the property in a manner inconsistent with
the rights of the owner. Thus borrowing a thing and later selling it would amount to stealing.

The thing alleged to be stolen must also be capable of being stolen. S. 382 CC contains an
exhaustive list of things capable of being stolen including every inanimate thing whatsoever,
which is the property of any person and which is movable. Anything that is capable of being
made movable is also capable of being stolen once it is made movable e.g. trees or crops
severed from land. An ownerless thing is not capable of being stolen, neither is land. See
OJIKO v I.G.P where the accused was given money to buy land in his own name and transfer
it to another but instead of doing so, bought the land and kept it for himself. The court held
that land is incapable of being stolen. See also OXFORD v MOSS where the court held that
information in an exam draft which was taken by a student is incapable of being stolen.
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Although, S. 382 provides that a thing in action may be stolen e.g. shares, patents etc.

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Notes on Criminal Law II

Mens Rea

The mens rea of the offence of Stealing is taking or converting fraudulently with any of the
intents mentioned in S. 383(2) CC. Fraudulence here is used in the same sense as dishonesty.
This is important as it is not every instance of taking or conversion that would amount to
Stealing. In R v GHOSH, the defendant was a consultant at a hospital. He falsely claimed
fees in respect of an operation that he had not carried out. He claimed that he thought he
was not dishonest by his standards because the same amount of money was legitimately
payable to him for consultation fees. He was convicted for theft. In R v HOLDEN however,
the accused took used tyres from a shop. His defence was that he believed others had taken
tyres from there with the consent of the manager. The court held that his intention was
not dishonest and it did not matter that it was unreasonable as far as he honestly held such
belief. See also S. 23 & 25 CC for the provisions of the code on mistake.

Any one of the following intents would amount to fraudulent intention as provided under S.
383(2) CC.

An intention to permanently deprive the owner of the thing of his property. If the intent is
to temporarily deprive the owner of the thing, it would not amount to stealing except coupled
with any other intent. In R v WARNER, the defendant took a tool box to annoy the owner
but panicked and hid it when the police were called, claiming that he intended to return it
undetected. His conviction for theft was quashed on appeal. If the person intended to keep
it permanently but changed his mind afterwards and returned it, he would still be guilty of
theft. A conditional taking with intent only to keep the valuables is not stealing especially
where nothing was eventually taken. In R v EASOM, the accused took the victim’s bag with
the intent to steal any money he found in it. He didn’t find any money and thus returned the
bag. His conviction for stealing the bag and its contents was quashed on account of a lack of
intention to permanently deprive the owner.

An intention to deprive permanently, any person who has any special property in the thing of
such property. The term "special property" includes any charge or lien upon the thing in
question, and any right arising from or dependent upon holding possession of the thing in
question, whether by the person entitled to such right or by some other person for his
benefit e.g. clothes taken to a tailor or a car taken to a garage if it is taken later by the
owner or his agent without due release. See NDUKWE v L.P.D.C and R v HOLLOWAY.

The other intents are (i) 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; (ii) an intent to deal with it in such
a manner that it cannot be returned in the condition in which it was at the time of the taking
or conversion, see R v BAILEY; (iii) in the case of money, an intent to use it at the will of
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Notes on Criminal Law II

the person who takes or converts it, although he may intend afterwards to repay the amount
to the owner. Exemptions are however made with respect to special cases under S. 384 CC.

Note

A person accused of stealing may rely on the defence of having assumed rightful ownership
of the goods after purchasing them for money or money’s worth in good faith. See S. 3(2)
Theft Act and R v ADAMS. He may also contend that he took the property for the purpose
of recovering a lawful debt or that he is innocent of the charge for want of knowledge of
the owner’s right. Where he subsequently acquires knowledge that the property belongs to
another and still keeps it, he would be liable for Stealing. It was also held in NYAME v F.R.N
that it is not a defence known to law for an accused person to contend that he cannot be
prosecuted by the prosecutor on the basis that the prosecutor is not the owner of the
property.

Punishment

The offence of Stealing is ordinarily punishable with three years’ imprisonment where no
other punishment is prescribed. See S. 390 CC. Where the thing stolen is a testamentary
instrument, postal matter or any chattel therein, the punishment is life imprisonment. See
S. 390 (1) & (2). Further punishments provided under that section may extend to seven years’
imprisonment.

THEFT

Whoever, intending to take dishonestly any movable property out of the possession of
a person without that person’s consent, moves that property in order to take it is said
to commit theft. Also, whoever dishonestly diverts, abstracts, consumes or uses any
electricity or electric current is said to commit theft. S. 286 PC

Actus Reus

The actus reus of Theft under the PC is moving movable property in order to take it out of
the possession of a person without his consent. Moving as contained here is synonymous with
taking under the CC. The act of theft is complete once the thing is moved or some definite
action is taken to remove it from the possession of another. Moving includes severing,
removing an obstacle, separating or actually moving the thing.

Movable property as defined by S. 12 PC includes corporeal property of every description

except land and things attached to the earth or permanently fastened to the thing attached
to the earth. By this definition, a thing in action cannot be subject of theft under the PC as
it is incorporeal. Electricity however comes under the definition of things capable of being
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stolen by virtue of S. 286(2) PC.

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Notes on Criminal Law II

The thing stolen must be taken out of the possession of a person. A thing is in a person’s
possession if it is in his custody, with his agent, servant, wife or otherwise under his control
e.g. in his house, compound or on his land etc. As such, a thing that has been lost by the
owner or that has left the possession of the owner by means other than a moving effected
by the accused cannot be said to have been stolen.

The moving of the thing must also be without the consent of the owner. This is the major
difference between the offence as punished under the CC and its provision under the PC.
The PC admits of only moving whereas the CC admits of both moving and conversion. As such,
under the PC, if a person borrows a thing from another and sells it without the consent of
the owner, he would not be guilty of theft because the material period for consent is the
time of moving the thing out of the owner’s possession. Thus, once the thing is removed from
the owner’s possession with his consent, nothing that happens thereafter may amount to
theft. Furthermore, it is not necessary that the one from whom the thing is taken is the
actual owner, it suffices if he has a right to immediate possession.

Mens Rea

The mens rea of Theft under the PC is an intention to take dishonestly. Dishonesty here
means doing a thing with the intention of causing a wrongful gain to oneself or another or of
causing a wrongful loss to any other person. See S. 16 PC. It is equivalent to fraudulence
under the CC. There is of course no dishonesty if the intention is simply to take the thing
temporarily. Although, it would amount to Theft if the temporary intent is with the object
of causing wrongful gain or wrongful loss. This is another big difference between the two
codes.

Punishment

The punishment for Theft under the PC is five years’ imprisonment or fine or both. See S.
287 PC. This may extend to seven years under SS. 288 & 289. Under S. 290, the punishment
may extend to fourteen years where the theft is accompanied with preparation to cause
death, hurt, restraint or the fear of any of these in order to effect escae or retain the
stolen property.

OBTAINING BY FALSE PRETENCES/CHEATING

The offence of obtaining by false pretences is defined and punished under S. 419 CC while
the equivalent of this offence under S. 320 PC is cheating.

FALSE PRETENCES

The offence of obtaining by false pretences is committed when any person, by any false
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pretence, and with intent to defraud, obtains from any other person anything capable

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Notes on Criminal Law II

of being stolen, or induces any other person to deliver to any person anything capable
of being stolen. It is immaterial that the thing is obtained or its delivery is induced
through the medium of a contract induced by the false pretence. See S. 419 CC.

In ONWUDIWE v F.R.N, seven ingredients of the offence were established. They are:

a) That there was a pretence

b) That the pretence emanated from the accused
c) That the pretence was false
d) That the accused knew of the falsity or did not believe in its truth
e) That there was an intention to defraud
f) That the thing is capable of being stolen
g) That the accused induced the owner to transfer his own interest in the property

Actus Reus

The actus reus of obtaining by false pretences consists in obtaining, by false pretence,
anything capable of being stolen or inducing the delivery of that thing to any other person.
The thing obtained or delivered must be a thing capable of being stolen. As such, land cannot
be subject of this offence.

Obtaining here involves inducing the owner to transfer his whole interest in the property.
The false pretence must induce a transfer of ownership in the property and not just
possession. Where only possession is transferred, the offence is stealing and not obtaining
by false pretence. See OSHIN v I.G.P where the accused, pretending to be a clerk of a
store, sold goods to a customer and induced him to part with an amount higher than the
normal price in order that he may pocket the difference. The WACA convicted him for
stealing on the basis that what he obtained was merely possession of the money which he
held for the store owner and that by keeping part of it, he was guilty of stealing. If only
bailment of property is obtained by the pretence, the offence is not committed e.g. obtaining
a bicycle by false pretence in order to ride it and return same. If the property is obtained
from a bailee, it is not an offence here. It must be obtained from a person who has power
to transfer general ownership in the goods.

Inducing delivery as distinguished from obtaining may involve inducing delivery to oneself or
another while obtaining is to oneself alone. The delivery induced here is delivery of
ownership.

False pretence here means any representation made by words, writing, or conduct, of a
matter of fact, either past or present, which representation is false in fact, and which the
person making it knows to be false or does not believe to be true. See S. 418 CC. Implicit in
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this definition is the fact that the representation must be as to matters of fact either past

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Notes on Criminal Law II

or present but not future. In R v DENT, where the accused represented falsely to some
farmers that he would kill the pest on their farms for their money and did not do so, the
court held that he was not guilty because the representation related to future facts. If it
consists partly of a statement as to future facts, the material representation that induced
the representee to part with his property must at least be contributed to by present or
past facts. The pretence must also be something more than mere exaggeration for it to
constitute false pretence. A mere statement of opinion, not of fact, cannot constitute false
pretence. An exaggerated opinion of a salesman as to his product does not constitute false
pretence either. The pretence must also be false to the knowledge of the maker. An honest
belief in the truth of the statement by the accused which turns out to be false will not
constitute false pretence.

The pretence must also have induced the owner to part with his property. If the representee
is aware of the falsity or is not deceived by it, but still goes ahead to transfer the property,
no offence is committed.

Mens Rea

The mens rea of the offence is obtaining or inducing the delivery of a thing capable of being
stolen by false pretence, with intent to defraud. The obtaining or inducing delivery by false
pretence would not amount to an offence under this section unless it is accompanied by an
intent to defraud. An intent to defraud is an intent to induce another by deceit to act to
his detriment or contrary to what would otherwise be his duty. As such, if a person makes a
false representation in order to regain his property from a wrongful possessor, no offence
is committed. In D.P.P v RAY, the defendant had ordered a meal in a restaurant and had
consumed it with an honest state of mind. He then discovered that he was unable to pay for
the meal and remained silent as to his change in circumstances. The defendant waited until
the dining area was clear of waiters before running out. The House of Lords held that the
defendant had exercised a deception by remaining seated in the restaurant having decided
not to pay. His remaining in this position created the implied and continuing representation
that he was an honest customer who intended to pay the bill, thus inducing the waiters to
leave the dining area unattended, giving him the opportunity to run off without paying.

Punishment

The punishment for obtaining by false pretences is three years’ imprisonment. If the thing
obtained or induced to be delivered is of the value of one thousand naira upwards, the
punishment is seven years’ imprisonment. See S. 419 CC.

CHEATING
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Notes on Criminal Law II

As mentioned earlier, cheating is the equivalent of obtaining by false pretences and is

provided for under S. 320 PC. That section is to the effect that: whoever by deceiving any
person (a) fraudulently or dishonestly induces the person so deceived to deliver any
property to any person or to consent that any person shall retain any property; or (b)
intentionally induces the person so deceived to do or omit to do anything which he would
not do or omit to do if he were not so deceived and which act or omission causes or is
likely to cause damage or harm to that person in body, mind, reputation or property,
is said to cheat.

It is clear from this provision that there are two arms to the offence and an accused can
be charged under either. Another implication of this section is that it essentially punishes
the fraudulent or dishonest deceit of an individual that induces another to act. It is also not
always in respect of property as is clear from the second part of the offence.

Actus Reus

The actus reus of the first offence consists in deceiving a person such that the deceit
induces that person to deliver any property to any person or consent to the retention of
property by any person.

The deceit is an ingredient that must be specifically proved. See SAMBE v POLICE (1968)
NNLR 27 where the accused was convicted of cheating a prospective purchaser of a car.
The particular deceit by which he accomplished this was not proved by the prosecution
however. The court held that there must be evidence of the deceit. According to the
explanation to S. 320, a dishonest concealment of facts is enough to constitute deception.
Although, it is argued that this will only be the case where there is a duty of full disclosure.
Also, as distinguished from the CC, a representation as to future facts may also constitute
deception here. See the illustrations annexed to S. 320 PC. It is needless to iterate that
the subsequent delivery of property must be positively proved to have direct linkage with
the deceit. Finally, the “deceit” must be a false representation. It must also be either known
to be false by the representor or of such nature that he had no belief in its truth.

The delivery may be to the accused or any other person. As stated earlier, it must be
actuated by the deceit. The delivery here refers to delivery of ownership. The owner must
also have delivered the goods as a consequence of the deceit. If he did not believe the
deceit, the charge fails. The property referred to here may be movable or immovable
property.

For the second offence, the actus reus consists in inducing a person to do or omit something
he ordinarily would not do or omit to do, which omission is likely to cause damage or harm to
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that person in body, mind, reputation or property.

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Notes on Criminal Law II

The PC in S. 19 defines a likely thing as a thing that would not surprise a reasonable man if
it happens. The question that must thus be asked is if the omission caused by the deceit is
such as is likely to cause harm/damage to the victim.

Mens Rea

The mens rea for the offence of cheating is fraudulently or dishonestly inducing a person
by deceit to transfer property or intentionally inducing the person to do or omit something
he would not do or omit. See SS. 16, 17, 13 & 14 for the definitions of dishonestly,
fraudulently, wrongful gain and wrongful loss respectively. Wrongful gain and wrongful loss
are particularly defined in terms of unlawfully obtaining something that one is not legally
entitled to or unlawfully causing loss of something another is legally entitled to.

Punishment

The offence of cheating is punished by a jail term of three years or fine or both. See S.
322 PC

RECEIVING STOLEN PROPERTY

The offence of receiving stolen property is punished under both the Criminal and Penal
Codes. Under the Criminal Code, the offence is punished under S. 427 while it is punished
under S. 316 & 317 of the Penal Code. While the offences are largely similar, there are some
material differences under the two codes.

Under The CC

The offence of receiving stolen property under the CC is committed when any person
receives anything which has been obtained by means of any act constituting a felony or
misdemeanour, or by means of any act done at a place not in Nigeria, which if it had
been done in Nigeria would have constituted a felony or misdemeanour, and which is an
offence under the laws in force in the place where it was done, knowing the same to
have been so obtained. See S. 427 CC

In ABACHA v F.R.N, the court laid down four ingredients of the offence namely:

 That the property in question is stolen property

 That the accused received or retained such property
 That he did so dishonestly
 That he knew or had reason to believe that the property is stolen property.

Actus Reus
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Notes on Criminal Law II

The actus reus of the offence of receiving stolen property consists in receiving property
that has been obtained by means of any act constituting a felony or misdemeanour either in
Nigeria or outside Nigeria.

It is clear from this that the means of obtaining the property received need not have been
theft/stealing i.e. it need not have been stolen property. It would suffice if the property
had been obtained by any means constituting a felony or misdemeanour e.g. murder, robbery,
burglary, rape etc. The prosecution must however prove that the property in question is
“stolen” property. It is further insufficient for the prosecution to show that they were
“stolen” goods previously, they must show further that the goods continued to be stolen as
at the time they were received by the accused. Once stolen goods come to their true owner
or are recaptured by the police, they cease to be stolen goods and anyone who receives them
thereafter cannot be liable under this offence. Also, where the goods which had been stolen
are lawfully acquired by a person, whoever receives them thereafter cannot be guilty of this
offence even if he knew the goods to have previously been stolen. See S. 429 CC.
Furthermore, where the property had been obtained in circumstances that would have
amounted to a felony, by a person lacking criminal liability, that property cannot be said to
have been stolen i.e. obtaining of property stolen by a child below the age of seven.

The other ingredient here is that the accused must have received the stolen property. For
the purpose of proving the receiving of anything it is sufficient to show that the accused
person has, either alone or jointly with some other person, had the thing in his possession,
or has aided in concealing it or disposing of it. See S. 427 CC. Thus, having the thing in one’s
possession, or assisting another to dispose of or conceal the thing even without having
control over it will suffice as receipt of the property. The possession here may be
constructive or actual. It is actual where the accused has physical possession or control of
the property and constructive where it is held through a servant or agent or any person
under his control. See S. 1 CC. Where there is a conspiracy to receive the stolen property,
the one who is not in actual possession is also deemed to be in possession if he has knowledge
of unlawful possession by the other.

Mens Rea

The mens rea here consists in receiving the property dishonestly with knowledge or reason
to believe that it is stolen property. The two ingredients of dishonesty and knowledge as
required here are intertwined.

To constitute dishonest receipt, the receiver must have received the property with the
knowledge that the goods were stolen and the intention to appropriate them to his own use
or that of some other person. If he received them with the intent to hand them to the police
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or the true owner, no offence is committed. See R. V MATTHEWS (1950) 1 All ER 137 where

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the accused received property that had been stolen but contended that he had intended to
hand them over to the police. the prosecution argued that notwithstanding this, he could be
convicted for the offence of receiving stolen property. The court rejected the prosecution’s
argument.

The prosecution must further prove that at the time of receipt, the defendant knew the
goods were stolen or had reason to believe so. This knowledge may be proved directly or by
circumstantial evidence. In OKOROJI v STATE, where the defendant was charged for
receipt of stolen drugs and other medical supplies, the court held that in order to prove
guilty knowledge and dishonesty, evidence may be adduced by the prosecution as to:

 The time the goods were delivered

 The manner of receipt of the goods
 The actions of the accused upon delivery
 The price of the goods delivered

The prosecution may lead evidence as to the place of receipt of the property. Where the
accused received the property in his home or anyplace other than a market where that kind
of goods is naturally sold, there may be prima facie evidence of inferred guilty knowledge.
This would also be the case if the accused failed to secure a receipt for the item received.
Any lies told by the accused, receipt in suspicious circumstances of the goods from a person
who would not ordinarily be in a position to sell such goods may also be taken into account.

Furthermore, the court may rely on the doctrine of recent possession to infer guilty
knowledge of the defendant. S. 167(a) of the Evidence Act is to the effect that the court
may presume “a man who is in possession of stolen goods soon after the theft is either
the thief or has received the goods knowing them to be stolen, unless he can account
for his possession”. Thus, if the prosecution can prove that the goods alleged to have been
received by the defendant have been recently stolen, the court may infer guilty knowledge
therefrom unless he can account for his possession.

Punishment

The punishment for receiving stolen property under the CC is fourteen years if the thing
received was obtained by a felony, life imprisonment if the thing relates to any postal matter
or any chattel therein or seven years if the thing was obtained in any other circumstance.
See S. 427 CC.

Under The PC

S. 316 PC first defines stolen property as property the possession whereof has been
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transferred by theft, extortion, robbery, criminal misappropriation or criminal breach of

trust. The offence of receiving stolen property therefore consists in knowingly receiving or

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Notes on Criminal Law II

retaining stolen property knowing or having reason to believe the same to be stolen. See S.
317.

Actus Reus

The actus reus of this offence consists in receiving or retaining stolen property as defined
by S. 316 PC.

Once again, the prosecution must prove conclusively that the property was “stolen”. Although
in this instance, it can only be stolen if it was transferred by theft, extortion, robbery,
criminal misappropriation or criminal breach of trust. It is clear that the ambit of the
“stolen” nature of the property under the PC is a lot narrower than that provided under the
CC.

The property must also have been received or retained. Receipt here is basically the same
as receipt under the CC. Possession as defined by S. 20 PC includes when property is in the
possession of a person’s wife, clerk, or servant on account of that person. Retention as
provided here is also another big departure from the provisions of the CC. Thus, where the
defendant first received the property innocently without guilty knowledge but later finds
out that the property is stolen property and still retains it, he would be liable under this
offence.

Mens Rea

The mens rea here consists in knowing or having reason to believe that the property is stolen.
This is essentially the same as that provided under the CC.

Punishment

The punishment for the offence under the PC is fourteen years’ imprisonment or fine or
both. See S. 317 PC

HOUSE BREAKING & BURGLARY

Any person who (a) breaks and enters the dwelling-house of another with intent to
commit a felony therein; or (b) having entered the dwelling-house of another with intent
to commit a felony therein, or having committed a felony in the dwelling-house of
another, breaks out of the dwelling-house, commits an offence under the Criminal Code.
If the offence is committed during the day, the offence is House Breaking. If
committed during the night, the offence is Burglary. See S. 411 CC. The reason for this
stratification is the particular consequence of the breaking in or breaking out.

House Breaking
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Actus Reus

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Notes on Criminal Law II

The actus reus of the offence consists in breaking and entering into or having entered,
breaking out of the dwelling house of another.

Breaking may be actual or constructive. A person who breaks any part, whether external or
internal, of a building, or opens by unlocking, pulling, pushing, lifting, or any other means
whatever, any door, window, 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 a building to another,
is said to actually break the building. See S. 410 CC. This breaking may be done from outside
or inside of the house, depending on whether the person is breaking in or breaking out. If
the door or window or any other entrance normally used as a means of ingress or egress is
left open by the owner, and a thief enters through that same entrance, there is no breaking.
See R v ONWEMUNLO where the door of the house broken into had already been left open
by the occupier of the house. It was held that there was no breaking. Merely pushing open
an already partly open door is not breaking even though its initial state was such that a
person may not easily fit through. Furthermore, entry into or exit from a building by the
chimney or other aperture of the building permanently left open for any necessary purpose,
but not intended to be ordinarily used as a means of entrance will qualify as breaking and
entering. Breaking may also be into a part of a building. In R v WALKINTON, the defendant
had entered a department store during opening hours, and had approached a three-sided
partition that surrounded a till on the middle of the shop floor. He proceeded to stand inside
the partitioned area and opened the till drawer to see if it contained any money for him to
steal. The Court of Appeal held that the area inside the partition represented "part of a
building" from which the public had been impliedly excluded. The defendant being aware of
this had been correctly convicted. Constructive breaking may be by means of any threat or
artifice used for that purpose, or by collusion with any person in the building. See S. 410 CC.

Entry is complete as soon as any part of the defendant’s body or any part of any instrument
used by him is within the building. See S. 410 CC and R v. COLLINS.

The building entered into must not be just any other building, it must be a dwelling house.
As defined under S. 1 CC, it includes any building or structure, or part of a building or
structure, which is for the time being kept by the owner or occupier for the residence
therein of himself, his family, or servants, or any of them: it is immaterial that it is from
time to time uninhabited. Furthermore, a building or structure adjacent to, and occupied
with, a dwelling- house is deemed to be part of the dwelling-house if there is a communication
between such building or structure and the dwelling- house, either immediate or by means
of a covered and enclosed passage leading from the one to the other, but not otherwise. It
must thus be residential. As such, it does not matter what sort of structure the dwelling
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house is, it suffices if it is residential.

13
Notes on Criminal Law II

Mens Rea

The mens rea of the offence is breaking and entering with intent to commit a felony or
having entered with the intent to commit a felony, breaking out. In both cases, the intent
to commit a felony is relevant except where the felony has been committed. Although, the
material thing is proof of this intent, not necessarily proof of commission. The intent must
also exist at the time of breaking and entering. If the initial breaking and entry was
innocent, and thereafter an intent to commit a felony was incubated, no offence is
committed except if the defendant then broke out by another entrance other than the one
wherefrom he broke in.

Burglary

The actus reus and mens rea for Burglary are essentially the same as that for House
Breaking except for one material difference. Where the actus reus of house breaking is
committed at night, the offence is burglary and not house breaking. For this purpose, only
the actus reus ingredient of “night” will be considered.

According to S. 1 CC, "night" or "night time" means the interval between half past six o'clock
in the evening and half past six o'clock in the morning. This is essentially the period between
6:30 pm and 6:30 am. Any entry into and/or exit from the building at any time beyond the
stated period will not amount to burglary but house breaking. Thus, the time of entry into
the building and exit must be taken into account for a charge of burglary to stand.

The breaking and entry must also be at night. If the breaking is in the day and the entry at
night, there can be no charge of burglary. Although, the breaking and entry or entry and
breaking need not be done on the same night. See R v SMITH where the breaking was done
on a Friday night while the entry was done on a Saturday night.

Punishment

The offence of house breaking is punished with fourteen years’ imprisonment while the
offence of burglary is punished with life imprisonment. See S. 411 CC.

Under The PC

The offence is defined under S. 346 PC and involves committing House Trespass via any one
of the means mentioned in S. 346. Commission of the offence in S. 345 between the hours
of sunset and sunrise is an offence of House Breaking by night.

House breaking is punishable by two years’ imprisonment under S. 353 PC though this may
extend to fourteen years’ imprisonment under S. 354 PC if it is committed with the intent
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to commit an offence punishable with imprisonment. Committing the offence by night in

14
Notes on Criminal Law II

either case may attract three years’ imprisonment under S. 355 or life imprisonment under
S. 356.

ROBBERY & ARMED ROBBERY

The offences of Robbery and Armed Robbery are intertwined. They are contained under the
same sections of the CC.

ROBBERY

The offence of robbery, as provided under S. 401 CC is committed when any person 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. Thus, the offence of robbery is “simply stealing plus violence used or threatened”
as was held by the court in HARUNA v STATE. S. 401 CC is impari materia with S. 8(1) Theft
Act 1968 and S. 11(1) Robbery & Firearms (Special Provisions) Act 2011.

Actus Reus

The actus reus of the offence of robbery consists in the stealing of a thing, with the threat
or use of violence at, immediately before or immediately after the time of stealing in order
to obtain or retain the property to prevent or overcome resistance to the stealing.

The first important ingredient here is stealing. To this extent, stealing and all its
ingredients must be proved i.e. fraudulently taking or converting a thing capable of being
stolen. As such, land cannot be a subject of robbery or armed robbery. The taking of the
thing need not be complete, it is sufficient if it is moved out of the possession of the owner.
See CORCORAN v ADERTON. The offence may also be committed by a fraudulent
conversion. In R v OBI BEKUM, where property was deposited in the possession of the
accused by the victims who were later killed by the accused with the intent to steal the
property, the court held that this was a robbery and the property need not be taken from
the person (the victim) or in the presence of another nor from his immediate personal care
and protection. A fraudulent conversion would thus suffice. In BALOGUN v A.G. OGUN
where the accused and some other persons had gone to the house of the victim in order to
rob him, the victim, in his statement to the police, averred that the accused took from his
house, some jewellery belonging to his wife and some money. He however failed to state this
in his testimony at the trial court and the prosecution did not adduce any evidence on what
was stolen. The court held that it is necessary for the prosecution to prove that something
was actually stolen in order to succeed in a charge for armed robbery.
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Another important ingredient of the offence is the threat or use of violence. It would not
matter that the threat of violence is incapable of execution as the important thing is that

15
Notes on Criminal Law II

the threat was effective and a reasonable man would anticipate violence therefrom. The
violence must be used at, immediately before or immediately after the stealing. Where
there is any gap between the stealing and the use of violence, the charge of robbery may
fail. In NJUGUNA v REPUBLIC, the accused was found running away about 500 yards from
a house which he had burgled and, on being caught, he used force to retain the goods he had
stolen and it was held that the conviction should have been for burglary and theft and not
for robbery as the element of using violence immediately after the act was lacking. In R v
ROBINSON however where violence was used by the accused to retrieve money which he
was owed by the victim’s wife, the court held that he was not guilty of robbery as he believed
he had a right to the money.

Mens Rea

The mens rea of the offence also consists in the mens rea for the offence of stealing. This
is any one of the intents in S. 383 CC including an intent to permanently deprive the owner
of the thing. As such, the taking or conversion of the property must be fraudulent. In R v
ROBINSON, the accused was declared not guilty even though he had used violence to obtain
money from the accused because he honestly believed that he had a right in law to deprive
his victim of the money, even though he knew he was not entitled to use the knife to get it.
This is equivalent to the defence of honest claim of rights under S. 23 CC.

In R v FORRESTER however, the accused, believing his deposit as a tenant was being unfairly
held unto, colluded with his friend and went to the landlord’s house, burst in when the door
was opened and seized some items whilst his friend restrained the landlord with the
intention to use the items to bargain for the return of his money. He was convicted for
robbery and it was held that he knew he had no right to the items themselves and so could
not claim that he was not dishonest. He was thus fraudulent.

Under The PC

According to the PC, in all robbery there is either theft or extortion. See S. 296(1). S.
296(2) PC is to the effect that theft is robbery if, in order to commit the theft or in
committing the theft or in carrying away or attempting to carry away property obtained by
the theft, the offender for that end voluntarily causes or attempts to cause to any person
death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant
wrongful restraint.

The actus reus of the offence is therefore theft which involves intending to take
dishonestly any movable property out of the possession of a person without that person’s
consent, and moving that property in order to take it, and causing or attempting to cause
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death, hurt or wrongful restraint or the instant fear of any of these. The hurt aspect of

16
Notes on Criminal Law II

the actus reus is quite similar to that contained under the CC. Although, it can be said that
the PC is more widely couched than the requirement for violence under the CC.

The mens rea would be intending to take property out of another’s possession dishonestly.

Punishment

The punishment for the offence of robbery is imprisonment for a period not less than
twenty-one years under S. 402(1) CC. Under the PC, the punishment for the offence is up to
ten years. See S. 298(a) PC. If the offence is committed between sunset or sunrise, the
punishment may extend to fourteen years’ imprisonment. See S. 298(b) PC. Under S. 1(1)
Robbery and Firearms Act, the punishment is not less than twenty-one years’ imprisonment.
Where there is an attempt to commit the offence but no property is taken, the punishment
under S. 403 CC is imprisonment for a term not less than fourteen but not more than twenty-
one years. This provision is impari materia with S. 2(1) Robbery & Firearms Act which
however provides for between fourteen and twenty years. The punishment for an attempt
under S. 299 PC is seven years’ imprisonment. Where hurt is caused, in either attempting or
committing the offence, the punishment is up to fourteen years’ imprisonment.

ARMED ROBBERY

The offence of armed robbery is not specifically defined under the CC nor the PC. The major
distinguishing factor of the offence is only identifiable in the punishment provided therefor.
As such, the ingredients of the offence of armed robbery are more readily provided by case
law. In BELLO v STATE, where the accused was alleged to be a member of a team of armed
robbers, he contended that he had not been adequately identified by the prosecution. The
trial court however found that two of the victims of the attack, one a woman whom he would
have raped but for the fact that she was on her period and the other, a woman he actually
raped, had positively identified him. The court held that the accused was sufficiently
identified and pontificated the ingredients of armed robbery thus:

 That there was robbery or a series of robberies.

 That each robbery was an armed robbery/the robbers were armed.
 That the accused was one of those who took part in the armed robberies

See also DIBIE & ORS v STATE.

There is no distinct requirement for mens rea nor actus reus although, these are implied in
the proof of the foundation ingredient of robbery and eventually stealing.

On the first ingredient that there was a robbery, the prosecution must lead material
evidence to the fact that a robbery was actually committed. The offence would not amount
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to a robbery where the thing taken was not done so fraudulently or dishonestly. See R v

17
Notes on Criminal Law II

ROBINSON. See also HARUNA v STATE where the accused had chased after the victim
and accosted him, demanding, based on the evidence of one of the prosecution witnesses,
that the accused should give them their share of the money. Even though they had allegedly
used weapons and injured the victim, they were acquitted on the basis that they were only
trying to obtain what they believed was rightfully theirs and as such were not dishonest.
The court held that the vital element of “stealing” had not been proved.

The second ingredient consists in providing proof that the robbery was an armed robbery
or that the accused were armed. In order to discern what constitutes armed robbery, it is
useful to look into the provisions of both codes. According to S. 402(2) CC, if the offender
is armed with any firearms or any offensive weapon or any obnoxious or chemical
materials or is in company with any person so armed; or (b) at or immediately before
or immediately after the time of robbery, the said offender wounds any person, the
offence is armed robbery and carries a death sentence. S. 298(c) PC also punishes armed
robbery as an offence that involves being armed with a dangerous or an offensive weapon
or instrument. The extant law on robbery and armed robbery, the Robbery & Firearms Act,
also provides under S. 1(2) that the offence is armed robbery if the offender is armed
with any firearms or any offensive weapon or is in company with any person so armed;
or (b) at or immediately before or immediately after the time of the robbery the said
offender wounds or uses any personal violence to any person. Thus, the prosecution must
prove that:

 the offender is armed with any firearms or any offensive weapon; or

 he is in company with any person so armed; or
 at or immediately before or immediately after the time of the robbery the said
offender wounds or uses any personal violence to any person.

Firearms and offensive weapons are defined under S. 11(1) of the Robbery & Firearms Act
as well as S. 403B CC. In JOHN NWACHUKWU v STATE, where the accused effected a
robbery with the use of a toy gun, it was held that a toy gun is not normally made or adapted
for causing injury to a person and is not capable of being used as an offensive weapon but a
plaything for children and as such, does not constitute a firearm or offensive weapon. In
HARUNA v STATE, the court held that in a charge of armed robbery, the weapons allegedly
used by the accused must be strictly proved and failure to prove this means a failure on one
of the ingredients of armed robbery. It was further held that where it is wounding that was
alleged, the wound(s) must be proved too.

On the last ingredient, the prosecution must prove positively that the accused actually took
part in the armed robbery. In IKEM v STATE, the victims were accosted on the Asaba
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bridge and robbed of the sum of twenty naira. They alleged that they were stopped on the
road by a figure waving a flashlight and robbed by two persons in civilian clothing who later

18
Notes on Criminal Law II

ran into the bush. They went back to the scene with the police and the victims, on a
“suspicion”, later identified the accused as one of the robbers. The charge failed on the
basis that the prosecution failed to positively identify the accused as one of those who took
part in the robbery and also failed to prove the weapon(s) allegedly used in the armed
robbery. See also HRUNA v. STATE.

Punishment

The punishment for armed robbery under S. 402(2) CC is a death sentence. The punishment
under S. 298(c) PC is also life imprisonment or a less term while the punishment for the
offence under S. 1(2) Robbery & Firearms Act is a death sentence. Where the offence is
attempted, the punishment under S. 403(2) CC is imprisonment for life with or without
whipping. The punishment under S. 2(2) Robbery & Firearms Act is imprisonment for life.
The punishment under S. 303 PC is not less than seven years in jail.

Other Offences

By virtue of S. 4 Robbery & Firearms Act, it is an offence to knowingly house, shelter or

give quarter to an armed robber and the offender is liable to five years’ imprisonment in the
case of an individual and a fine of ten thousand plus closing down in the case of a hospital or
clinic. See S. 4(1), (3) & (4). A duty is also imposed on anyone who treats, admits or
administers any drugs to a person suspected of having any bullet wounds to report the
matter immediately to the police. See S. 4(2).

It is also an offence for a person to be in possession of firearms or have them under his
control illegally. See S. 3 Robbery & Firearms Act. The person may be liable on conviction to
a fine of twenty thousand naira or imprisonment of not less than ten years or both.

A person who abets, aids, procures or instigates the commission of any offence under SS. 1,
2, 3, or 4 may be punished as if he committed the offence itself, if found guilty. See S. 6

The governor of a state may direct the manner in which a death sentence is to be carried
out for a conviction under S. 1(2) of the Robbery and Firearms Act. See S. 1(3). See also
IKEM v STATE where it was held that it is not the place of the court to determine how the
death sentence under the Act should be carried out. Also, the High court, by virtue of S. 9
of the Act is given jurisdiction to determine offences prosecuted under the Act. This was
not always the case as the offence was only triable by special tribunals under the initial
decree promulgated in 1970 and no appeals were allowed to higher courts.
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19
Notes on Criminal Law II

OFFENCES AGAINST PUBLIC ORDER & THE STATE

This category of offences includes offences against the public order and other offences
that may have the effect of subverting the stability and security of the state.

UNLAWFUL ASSEMBLY

This offence is contained under both the Criminal and Penal codes although, the substance
of the offence is materially different in both. It seems harsh to the extent that it detracts
from the constitutional freedom of association and assembly guaranteed under S. 40 CFRN
1999. The law however seeks to strike a balance between this right and the need to preserve
the public peace.

Under the CC

When three or more persons, with intent to carry out some common purpose, assemble
in such a manner or, being assembled, conduct themselves in such a manner, as to cause
persons in the neighbourhood to fear on reasonable grounds that the persons so
assembled will tumultuously disturb the peace, or will by such assembly needlessly and
without any reasonable occasion provoke other persons tumultuously to disturb the
peace, they are an unlawful assembly. See S. 69 CC. An assembly is thus unlawful when at
least three persons assemble or conduct themselves in such a manner that it may reasonably
be feared that they will disturb the peace or provoke others to do so.

Actus Reus

The actus reus of the offence consists in an assembly or having assembled, conduct of three
persons or more that causes reasonable apprehension of a tumultuous disturbance of the
peace or the provoking of others to so disturb the peace.

The assembly must be of three or more persons. It is immaterial that the original assembling
was lawful if, after being assembled, they conduct themselves in a manner that disturbs the
peace or provokes others to disturb the peace. See S. 69 CC. This may be the case if a
subsequent common intention was formed. An assembly of three or more persons to prevent
the breaking of and entry into a house is not an offence under this section. See also S. 69.

The assembly or conduct must cause a reasonable apprehension of fear that the peace will
be tumultuously disturbed. This apprehension must be reasonable and the test of its
reasonability is the question: will firm and rational men, in those circumstances, have grounds
to fear a breach of the peace? In R v EYO, where a crowd of about 500 persons assembled
on a public road, singing songs, brandishing lethal weapons and blocking the highway, it was
held that they were an unlawful assembly.
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20
Notes on Criminal Law II

Mens Rea

The mens rea of the offence consists in an assembly of three or more persons with intent
to carry out a common purpose. This common purpose need not be unlawful, in so far as it is
common to all the assembled persons charged. See again S. 69 CC. The purpose must have
been common from the outset of assembly. Where this is not so, the assembly cannot be
said to be unlawful even if a reasonable fear of tumultuous breach is engendered. In
OGENYI v I.G.P, the court held that “the paramount point remains that in assembling to
begin with, they assembled with intent to carry out some common purpose.” Thus, in
AMAFINA v I.G.P, where two rival factions supporting different candidates at an election
assembled to settle their differences by force, it was held that they did not have a common
purpose and it was wrong to charge them all together as an unlawful assembly. The charge
may have succeeded if each faction was charged individually.

Punishment

Any person who takes part in an unlawful assembly is guilty of a misdemeanour, and is liable
to imprisonment for one year. See S. 70 CC

Under the PC

An assembly of five or more persons is an unlawful assembly if the common object of that
assembly is:

 to overawe by criminal force or show of same, the government of the federation, a

state or a public officer
 to resist the execution of a law or a legal process
 to commit a mischief or criminal trespass or any offence
 by means of criminal force or show of same, to enforce a right or supposed right
 by means of criminal force or show of same, to compel a person to do or omit what
he is legally not bound to do or entitled to do. See S. 100 PC

Whoever, being aware of the facts which render it an unlawful assembly, intentionally joins
that assembly or continues in it is said to be a member of an unlawful assembly. See S. 101
PC

Actus reus

This consists in an assembly of five or more persons. Joining that assembly or continuing in
it would be membership of same. An assembly which was not unlawful when it assembled may
also become an unlawful assembly here.
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21
Notes on Criminal Law II

Mens Rea

It consists first in a common object of the persons assembled to effect any of the purposes
in S. 100(a)-(e) PC. The second part of the mens is knowing of the facts that make an
assembly unlawful and intentionally joining it.

Punishment

Membership of the assembly is punished with up to one years’ imprisonment or fine. See S.
102 PC. Being armed with a deadly weapon attracts imprisonment of up to two years. See S.
103 PC.

RIOT

Under both the Penal and Criminal Codes, the offence of riot is committed when an unlawful
assembly has begun to act in so tumultuous a manner as to disturb the peace (S. 69 CC) or
when force or violence is used by the unlawful assembly or a member in prosecution of the
common object of the assembly (S. 105 PC). Every member of the assembly may be so
charged for riot and also for any offence committed by a member in the furtherance of the
common object. See also S. 108 PC.

As such, the distinction between unlawful assembly and riot is the actual disturbance of the
peace or the use of force or violence in prosecuting a common object. See R v EYO where
the crowd so congregated refused to leave when requested by the police and resisted by
force when an attempt was made to remove them. The court held that they constituted a
riot.

Punishment

The punishment for riot under the PC is three years’ imprisonment and five years’
imprisonment if armed with a deadly weapon. See S. 106 & 107. The punishment under the
CC is three years’ imprisonment. See S. 71 CC

AFFRAY

An affray is committed when any person takes part in a fight in a public place. See S. 83 CC.
A public place as defined under S. 1 CC includes any public way, and any building, place, or
conveyance, to which for the time being the public are entitled or permitted to have access,
either without any conditions or upon condition of making any payment, and any building or
place which is for the time being used for any public or religious meeting or assembly, or as
an open court.

There is no particular delineation of actus reus or mens rea in the offence of affray. All
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that is required is fighting in a public place, most probably unlawfully. The fight may be

22
Notes on Criminal Law II

excusable in law if it is for the purpose of self-defence or for any other lawful purpose. See
SS. 286-288 CC.

TREASON

The offence of treason is considered the most serious that can be committed in any state
because it goes against the very fibre of citizenship. It constitutes a fundamental betrayal
of the loyalty expected of a citizen by the state and owed to its government. By its very
nature, the offence can only be committed by a citizen of the state concerned. The rationale
for making an offence of treason is the protection of the nation’s safety as well as the
stability of the state.

The content of the offence is basically the same under both codes although, Chukkol has
ventilated several opinions as regards the interpretation given to S. 37(2) & 38 CC.

Any person who levies war against the state, in order to intimidate or overawe the
president or the governor of a state commits treason. See S. 37(1) CC and S. 410(1) PC.
Furthermore, under the CC, conspiracy with any person within or outside Nigeria to levy war
against the state is treason. See ENAHORO v QUEEN where the court held that a charge
of conspiracy to commit treason is properly brought under S. 37(2) CC. So is instigation of
any foreigner to invade Nigeria with an armed force. See S. 38 CC.

Levying of war, as contained in the relevant sections, does not mean an armed struggle per
se. It is not necessary that the accused have military training, wield special weapons or boast
large numbers. In R v HARDIE, the court also held that war must be levied for a general and
public purpose, not a private one.

The intimidation or overawing also need not be of the person of the president or governor
as was argued in R v BORO. The court held that there is no difference between the two as
the state and its head are one and the same and it is immaterial that the president or
governor did not feel intimidated or overawed.

It is also an offence under the CC to become an accessory after the fact to treason or
withhold information about a possible treason or fail to take reasonable steps to prevent its
commission. See S. 40 CC. Another offence under the CC is promoting native war with, for,
by or against any native chief or band of natives. See S. 42 CC.

The prosecution must commence a case against an accused under the CC with respect to the
foregoing offences within a period of two years of the commission of the offence. See S.
43 CC. Furthermore, S. 201 Evidence Act is to the effect that no one can be convicted of
any of the foregoing offences except:
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 on his plea of guilty; or in the alternative,

23
Notes on Criminal Law II

 on the evidence in open court of at least two witnesses to one overt act of the kind
of treason or felony alleged or one witness to one overt act and one other witness to
another overt act of the treason or felony alleged.

It was however held in OMISADE v QUEEN that it is not necessary for the evidence of one
witness to fully implicate the accused in respect of one overt act. It is enough if there are
snippets of evidence from several witnesses that add up to proof of an overt act.

Punishment

The punishment for the offence of treason is death. See SS. 37 & 38 CC and S. 411 PC. The
punishment for being an accessory after the fact to treason is life imprisonment. See S. 40
CC. The punishment for promoting native war is also imprisonment for life. See S. 42 CC.

TREASONABLE FELONIES

A treasonable felony is committed where only an intent to levy war against the president or
governor is formed. The difference between these offences and Treason is that in the
latter, the offence is fully formed while the former is inchoate.

The provisions of the two codes on the offences are impari materia in all respects. S. 41 CC
and S. 412 PC are to the effect that any person who forms an intention to effect any of the
following purposes, that is to say:

 to remove during his term of office otherwise than by constitutional means the
President as Head of State of the Federation and Commander-in-Chief of the armed
forces thereof; or
 to likewise remove during his term of office the Governor of a State; or
 to levy war against Nigeria in order by force or constraint to compel the President
to change his measures or counsels, or in order to put any force or constraint upon,
or in order to intimidate or overawe any House of the National Assembly or any other
Legislature or legislative authority; or
 to instigate any foreigner to make any armed invasion of Nigeria or of any of the
territories thereof; and manifests such intention by an overt act, is guilty of a felony
and is liable to imprisonment for life.

A person charged under either of the sections shall not be entitled to be acquitted on the
basis that any act proved to have been committed by him constitutes the offence of treason.

SEDITION

The offence of sedition is another which seems to infringe upon civil liberties. It is
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particularly strange to the layman who often feels he should be able to ventilate any sort of
opinion about the government of the day, especially a democratic one. This perceived

24
Notes on Criminal Law II

freedom is backed up by the provisions of S. 39 CFRN 1999. However, the right is derogable
and this derogation is to the extent of establishing a balance between freedom of
expression and the peace of the state. The law, as pontificated in D.P.P. v OBI by Ademola
CJN (as he then was), allows the freedom of expression but only frowns upon malignant
attacks on the government that affect the public peace.

The criminal code, in S. 51, provides that any person who:

 does or attempts to do, or makes any preparation to do, or conspires with any person
to do, any act with a seditious intention;
 utters any seditious words;
 prints, publishes, sells, offers for sale, distributes or reproduces any seditious
publication;
 imports any seditious publication, unless he has no reason to believe that it is
seditious;

shall be guilty of an offence and liable on conviction for a first offence to imprisonment for
two years or to a fine of two hundred naira or to both such imprisonment and fine and for a
subsequent offence to imprisonment for three years and any seditious publication shall he
forfeited to the State. The offence is also punished under S. 416 PC.

That section further provides in (2) that any person who without lawful excuse has in his
possession any seditious publication shall be guilty of an offence and liable on conviction, for
a first offence to imprisonment for one year or to a fine of one hundred naira or to both
such imprisonment and fine, and for a subsequent offence to imprisonment for two years;
and such publication shall be forfeited to the State. The offence is also punished under S.
419 PC.

In order to sustain a charge of sedition, the prosecution must prove:

 that the publication, act or words went beyond the lawful exercise of the right to
freedom of expression
 that the publication went beyond the bounds of what is permissible in political
controversy
 that a seditious intention could fairly be ascribed to the author of the article. See
AFRICAN PRESS v A.G and D.P.P v OBI

Actus Reus

The actus reus of the offence is doing any of the things mentioned in S. 51(1) CC. Seditious
words mean words having a seditious intention. A seditious publication is also one that has a
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seditious intention. Such publication includes all written or printed matter and everything,
whether of a nature similar to written or printed matter or not, containing any visible

25
Notes on Criminal Law II

representation, or by its form, shape, or in any manner capable of suggesting words or ideas,
and every copy and reproduction of any publication. To import such into Nigeria is to bring
into Nigeria and to bring within the inland waters of Nigeria whether or not the publication
is brought ashore, and whether or not there is an intention to bring the same ashore. See
generally S. 50(1) CC.

Mens Rea

The mens rea of the offence is doing any of the things mentioned in S. 51(1) CC with a
seditious intention. The only exception to this is the offence of importing a seditious
publication in which the prosecution must prove, apart from seditious intent, that the
accused had reason to believe the publication was seditious. See S. 51(1) (d) CC.

For the rest of the offences that constitute sedition under S. 51(1), the prosecution must
prove a seditious intention. This intention is defined under S. 50(2) as an intention:

 to bring into hatred or contempt or excite disaffection against the person of the
President or of the Governor of a State or the Government of the Federation; or
 to excite the citizens or other inhabitants of Nigeria to attempt to procure the
alteration, otherwise than by lawful means, of any other matter in Nigeria as by law
established; or
 to raise discontent or disaffection amongst the citizens or other inhabitants of
Nigeria; or
 to promote feelings of ill-will and hostility between different classes of the
population of Nigeria.

Although, an act, speech or publication is not seditious by reason only that it intends:

 to show that the President or the Governor of a State has been misled or mistaken
in any measure in the Federation or a State, as the case may be; or
 to point out errors or defects in the Government or constitution of Nigeria, or of any
State thereof, as by law established or in legislation or in the administration of
justice with a view to the remedying of such errors or defects; or
 to persuade the citizens or other inhabitants of Nigeria to attempt to procure by
lawful means the alteration of any matter in Nigeria as by law established; or
 to point out, with a view to their removal, any matters which are producing or have a
tendency to produce feelings of ill-will and enmity between different classes of the
population of Nigeria. See S. 50(2) CC.

The essence of this provision is to provide a safety net in respect of the offence because
there is sometimes a thin line between what is seditious and what is not. Due to this, there
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Notes on Criminal Law II

may sometimes be arbitrary interpretation of circumstances and shoehorning of such into

any one of the seditious offences. This provision forestalls that however.

For the purpose of proving that a publication is seditious, it is immaterial that some parts
of the publication are not seditious as such parts will not excuse the seditious parts. A
publication does not also cease to be seditious merely because it does not incite people to
violence. It is enough that the words themselves were made with a seditious intent.

The court may infer seditious intention from the manner in which the publication or words
are published. Where it is published to the whole world rather than the person concerned
with remedying the defect complained of, a seditious intention may be inferred. Also, the
words used and the effect achieved including the circumstances surrounding the publication
may be looked at by the court in determining a seditious intention as was held in R v ALDRED.
To wit, the CC provides in S. 50(3) that in determining whether the intention with which any
act was done, any words were spoken, or any document was published, was or was not
seditious, every person shall be deemed to intend the consequences which would naturally
follow from his conduct at the time and under the circumstances in which he so conducted
himself.

Defences

The accused may rely on the defence that the publication is true although, it is not expected
that this defence would hold up well as the court in some instances has held evidence of the
truth of the allegations inadmissible. The Supreme court in D.P.P v OBI however held that
proof of the truth of the publication may be relevant in showing the true intention of the
accused.

He may show that the publication was published against his express instructions. Absence
of a seditious intent (innocence) is also a good defence.

Prosecution must begin the proceedings against the accused within six months of the
commission of the offence. Also, prosecution can only be begun with the written consent of
the A.G Federation. Furthermore, no person charged for uttering seditious words can be
convicted on the uncorroborated evidence of one witness. See generally S. 52 CC

Punishment

The offence of sedition is punishable with imprisonment for two years or fine on first
conviction and three years for subsequent convictions. A person possessing a seditious
publication without lawful justification is liable on first conviction for up to one year in prison
and on subsequent convictions to two years. See S. 51 CC
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Notes on Criminal Law II

GENERAL PRINCIPLES OF SENTENCING

Sentencing goes hand in hand with punishment. It is different from conviction and usually
terminates criminal proceedings. It may even be a proceeding in itself. If punishment is the
reward for wrongdoing (criminal wrong), then sentencing is the procedure, process or means
of giving the criminal his reward.

Elizabeth Greene, in her paper titled “What is Sentencing” defined sentencing as follows:
Sentencing in legal terms means ‘any penalty or imprisonment ordered to be paid or served,
or any other order made by a court after an offender is convicted, whether or not a
conviction has been recorded.’ That is, in slightly more straightforward terms, imposing a
punishment or penalty for an offence of which an accused person has been convicted
following a trial, or has pleaded guilty.

A.A. Adeyemi further defined a sentence of the court in his paper, “Administration of
Criminal Justice in Nigeria: Sentencing”, as “a definite disposition order issued by a court
or other competent tribunal against a person standing trial, at the conclusion of a criminal
trial, subsequent to the finding of guilt against him and must be an order which is definite
in its nature, type and quantum.” From Adeyemi’s definition, the following characteristics of
a sentence can be deduced:

 It is a disposition order i.e. an order as regards what should be done about the convict
 It is usually issued by the court but may be issued by a competent tribunal too e.g.
the Robbery and Firearms Tribunal
 It is issued against a defendant in a criminal trial;
 Only after the close of trial;
 Subsequent to a finding of guilt
 It is definite i.e. must specify the nature, quantum and other specifics of the
punishment to be imposed.

THE FRAMEWORK ON SENTENCING

The legal framework on sentencing constitutes case law, statute, subsidiary rules and
directives of Heads of Courts. The grundnorm of this framework is the constitution though,
particularly S. 36(12). That section is to the effect that no person can be convicted of a
criminal wrong except such offence is defined in a written law and the punishment
prescribed therein. Two implications arise from this section:

 There must be a trial and conviction before sentencing can arise at all. Even in the
summary offence of Contempt, the offender is usually called upon to show cause why
he should not be punished by the court.
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Notes on Criminal Law II

 Any law that defines an offence without prescribing the punishment for such offence
is invalid. The summary offence of Contempt may be an exception to this rule though.
Two other qualifications to this rule are apposite. First, the legislation may not
necessarily prescribe the punishment in the same section that defines the offence.
It may prescribe the punishment in a subsequent section. See for instance, S. 383
and 390 CC which define and punish Stealing. Second, it may define the offence in
one section and refer to an entirely different law for its punishment.

Generally, sentencing is purely procedural and as such is largely governed by procedural laws
although a crucial part of it (punishments) is contained in substantive criminal laws. The CPA
and CPC provide for sentencing in most states of the federation while the ACJA governs
sentencing in Federal Courts and the FCT. The ACJL governs sentencing in Lagos. Decisions
of the Supreme Court also constitute important elements of the framework on sentencing.

APPROACHES OF THE LAW TO SENTENCES/PUNISHMENT

Sentencing generally is discretionary. The court is often left a lot of leeway in determining
how to dispose of a convict. However, the law may provide in several ways for the extent of
this discretion and whether there is any in the first place.

a) The law may make the punishment for an offence mandatory. In such instance, there
is no room for discretion and no punishment other than the one specifically
prescribed may be imposed. See for instance, the punishment for Armed Robbery
under S. 1(2) Robbery and Firearms (Special Provisions) Act which is death. This
mandatory punishment is usually preceded by the word ‘shall’ and often obtains in
capital offences.
b) The law may provide a range within which the court’s discretion may be exercised.
This range defines the upper and lower limits of the possible punishments that may
be imposed. See for instance, the punishment for Attempted Robbery under S. 2(1)
Robbery and Firearms Act which is not less than 14 but not more than 20 years’ jail
term.
c) The law may specify only the minimum or the maximum punishment for the offence.
Where it specifies the minimum, it means the court cannot prescribe a punishment
less than that specified. See for instance, the punishment for Robbery under S. 402
CC which is not less than twenty-one years’ jail term. Where it specifies the
maximum, the court cannot prescribe a punishment more than is specified. See
generally the PC and S. 25(1) NAFDAC ACT which provides for a punishment not
exceeding two years.
d) The law may simply provide for terms of imprisonment without specifying whether
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the term prescribed is the maximum, minimum or mandatory. See generally the CC.
In such instances, the court may have recourse to the interpretation Act which

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Notes on Criminal Law II

provides in S. 17(1) that the court shall interpret such jail term or fine as the
maximum punishment for the offence.
e) The law may also provide a fine as punishment without providing for its quantum. In
such instance, the court is unlimited as to the amount of fine it may impose. The fine
must not be excessive however and must not exceed the jurisdiction of the court.
See S. 72 PC. This provision is only applicable to Magistrate Courts and those lesser
than the High Court though. The court may also refer the matter to a higher court
for the purpose of sentencing where it discovers it has no jurisdiction in this regard.

OBJECTIVES OF SENTENCING

The objectives of sentencing may also be called the philosophy of sentencing. These
objectives are inextricably tied to the objectives of punishment. The objectives, as outlined
in S. 401(2) ACJA are as follows:

a) prevention, that is, the objective of persuading the convict to give up committing
offence in the future, because the consequences of crime are unpleasant;
b) restraint, that is, the objective of keeping the convict from committing more offence
by isolating him from society;
c) rehabilitation, that is, the objective of providing the convict with treatment or
training that will make him into a reformed citizen;
d) deterrence, that is, the objective of warning others not to commit offence by making
an example of the convict;
e) education of the public, that is, the objective of making a clear distinction between
good and bad conduct by punishing bad conduct;
f) retribution, that is, the objective of giving the convict the punishment he deserves,
and giving the society or the victim revenge; and
g) restitution, that is, the objective of compensating the victim or family of the victim
of the offence.

SENTENCING GUIDELINES

These are the general guidelines for exercising the court’s discretion where such room for
discretion arises.

(a) Separate offences charged together must each receive a separate sentence but if
they all form part of the same criminal action, the sentence will be concurrent;
(b) Where a term of imprisonment in default of fine is ordered, it cannot run
concurrently with a sentence of imprisonment imposed at the same time or with
default sentence in respect of another fine;
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(c) A fine must not be too heavy for the offender to pay;

30
Notes on Criminal Law II

(d) Separate fines imposed on different counts at the same trial are to be cumulative.
But the aggregate must be within the Court’s jurisdiction;
(e) While the age of the offender, being a first offender, pleading guilty to the charge,
may all sustain a plea in mitigation of sentences, conversely, the fact of previous
conviction, the prevalence of the offence, the seriousness of the offence, the non-
repentant attitude of the offender and the adverse effect of the offence on the
victim are all factors that aggravate sentence.

TYPES OF SENTENCE

The law provides specifically for the types of punishment that may be imposed on a convict.
These punishments include the following:

Death

This penalty is usually imposed for capital offences and is often mandatory. It is an order
of the court that the convict be deprived of his life, in consequence of the establishment
of his guilt for a capital offence. Capital offences are those offences in respect of which
the death penalty is prescribed. See for instance S. 319 CC, S. 37 CC, S. 221 PC, S. 1(1)
Robbery & Firearms Act. Other offences such as kidnapping and Oil Theft are punished in
some states. Offences like Apostasy, Highway Robbery and Murder also attract the death
sentence under Islamic law.

The death sentence is expected to be carried out in the manner provided under the relevant
procedural laws. S. 367 CPA and S. 273 CPC provide that a death sentence is carried out by
hanging by the neck until the offender is dead. The ACJA provides in S. 402 for a further
option of lethal injection. The ACJA further provides in S. 403 that where the sentence of
death has been passed, it shall only be carried out in accordance with the Act. It must thus
be strictly complied with. Where the provisions of the law as to pronouncement of a sentence
are not strictly complied with, it was held by the Supreme Court in OLOWOFOYEKU v.
STATE that such failure is a mere irregularity which does not invalidate the judgment
provided it is clear from the record of the court that a sentence of death was anticipated.

There are two instances though, where a person convicted of a capital offence would not be
sentenced to death. The first is in the case of a woman who is found to be pregnant. The
CPA in S. 368(2) and the CPC in S. 271(3) provide that she shall not be sentenced to death
but imprisoned for life in lieu. The ACJA however provides in S. 404 that the sentence of
death shall be passed on her but it shall be suspended until the baby is delivered and weaned.
The second instance is in the case of a person who is below the age of 17. Where the court
is of the opinion that he had not attained the age of 17 at the time of committing the
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offence, the death sentence shall not be passed or recorded but he shall be detained
pending the pleasure of the President. See S. 368(3) CPA and S. 272(1) CPC. The ACJA in

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Notes on Criminal Law II

S. 405 provides that in respect of a person, if below the age of 18 at the time of committing
the offence, a death sentence shall not be pronounced or recorded but he shall be sentenced
to life imprisonment or any less term deemed appropriate by the court.

The means of carrying out a death sentence include Hanging as provided for under S. 402
ACJA and Shooting as provided for under S. 1(3) Robbery & Firearms Act. Although, the
Lagos High Court in Ajulu & Ors. V. Attorney-General of Lagos State (unreported) Suit No:
ID/76M/2008 declared these means unconstitutional and inconsistent with S. 35 CFRN.
Other means of carrying out a death sentence include Lethal injection (S. 402 ACJA),
Stoning and Crucifixion (under Sharia).

The execution cannot be carried out though until the convict has exhausted all opportunities
afforded by his legal rights relating to appeal against conviction and sentence by the
relevant provisions of law. See S. 246 & 233 CFRN and ALIYU BELLO v. A.G OYO. The court
is also enjoined to draw the attention of the convict to his rights of appeal. See F.R.N v.
T.A. DAIRO & ORS.

Finally, the death sentence must be confirmed by the governor or the appropriate authority
before it is executed. See S. 413 ACJA

Imprisonment

This is a disposition order made by a court to the effect that a convict be incarcerated in a
prison for a specified time whether for life or a number of years. It is the fall back of most
jurisdictions due to the controversies that dog the death sentence. Imprisonment may be
with or without hard labour. Where the court does not specify though, the imprisonment
shall be deemed to be with hard labour. See S. 377 CPA. The term of imprisonment imposed
by the court must not exceed the limit of discretion placed by law and it must also be within
the court’s jurisdiction. The imprisonment may be ordered to run concurrently or
consecutively. In exercising its discretion though, the ACJA provides in S. 416(2) that the
court, in addition to S. 401, shall take into consideration the following factors:

 each case shall be treated on its own merit;

 the objectives of sentencing, including the principles of reformation, shall be
borne in mind in sentencing a convict;
 an appeal court may, in a proper case, reduce the sentence imposed by the
trial court, especially where it is excessive or based on wrong principles, or
an appeal court may increase the sentence imposed by the trial court
especially where it is inadequate;
 a trial court shall not pass the maximum sentence on a first offender;
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 the period spent in prison custody awaiting or undergoing trial shall be

considered and computed in sentencing a convict;

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Notes on Criminal Law II

 trial court shall conduct an inquiry into the convict’s antecedents before
sentencing;
 it may be desirable to adjourn for sentencing in order to have time to consider
any evidence adduced at the sentencing hearing in accordance with section
311 of this Act;
 where there is doubt as to whether the defendant or convict has attained
the age of 18, the court should resolve the doubt in his favour;
 a defendant may not be given consecutive sentences for two or more offences
committed in the same transaction;
 an appeal court may not increase the sentence of a lower court beyond the
maximum number of years the lower court has power to impose; and
 sentencing to a term of imprisonment shall apply only to those offenders who
should be isolated from society and with whom other forms of punishment
have failed or are likely to fail.

Some offences attract terms of imprisonment only. Others attract imprisonment plus fine
e.g. Kidnapping under S. 274 PC. Some others yet may attract imprisonment with an option
of fine in lieu. A sentence of life imprisonment in practice is equivalent to a term of
imprisonment for 20 years. See S. 70 PC. The sentence of the court also takes effect from
and includes the whole of the day on which it was pronounced. S. 419 ACJA.

A sentence of imprisonment cannot be imposed upon a person who in the opinion of the court
is below the age of 14. See S. 69 PC. Furthermore, where the accused is above 7 but below
18, the court may choose to deal with him in accordance with the Children and Young Persons
Act instead of passing the sentence prescribed by law. See S. 71 PC

Fine

It is an order of a court, wherein an amount is ordered to be paid by a person who has been
found guilty and convicted of an offence. The word fine derives from the Latin “finem
facere” meaning “to put an end to”. At times, fine may be a punishment on its own but most
of the time, it is prescribed in addition to or in lieu of another punishment. However, it is
generally prescribed on its own for minor offences while it is prescribed in addition to
another for major offences. See for instance S. 274 PC and the punishment for conniving,
consenting to or allowing an offence to be committed under the EFCC Act due to neglect
which is N100,000 for both individual and corporation. The punishment is also often used to
punish corporations.

Where the law does not specify the quantum of a fine, the court is unlimited but it must not
exceed its jurisdiction. S. 72 PC. In exercising its discretion on fines, the court must take
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the following into consideration:

33
Notes on Criminal Law II

 The fine must not exceed the jurisdiction of the court

 The fine must not be excessive
 The fine should take into consideration the financial means of the convict. S.
391 CPA and S. 427 ACJA.
 The fine must not exceed the maximum prescribed for that offence. S. 390
CPA

Caning/Whipping

This punishment has largely fallen into disuse. Caning may be considered for use as a
punishment, or it may be in lieu of any punishment or it may be in addition to other
punishment. Where a person is however sentenced to Caning, the sentence of the court
cannot exceed twelve strokes. S. 386 CPA and S. 77 PC. No person shall be sentenced to be
caned more than once for the same offence and the number of strokes must be specified in
the sentence. S. 384 CPA. Furthermore, the punishment shall not be passed on any person
who in the opinion of the court has attained the age of forty-five. S. 385 CPA.

Forfeiture

Forfeiture may be more in the nature of an ancillary order made after conviction than a
substantive sentence. It is usually imposed in the case of offences involving bribe, where
the property which has changed hands in the course of commission of such an offence may
be ordered to be forfeited to the state. See S. 19 CC. An example of an offence punishable
with forfeiture is importation of a prohibited publication under S. 58(1) CC.

AGGRAVATING AND MITIGATING FACTORS IN SENTENCING

Sentencing, as mentioned above is the procedure or process in inflicting punishment on a

convict. A separate proceeding is usually conducted for this purpose especially due to the
fact that a court has a lot to consider before it exercises its discretion in imposing its
sentence. The factors disclosed from the surrounding facts and circumstances of the case
which the court would take into consideration are the mitigating and aggravating factors. A
careful consideration of these factors amongst others is what allows the court to satisfy
the justice of the case.

MITIGATING FACTORS

These are those factors which, if found present in the instant case, would assuage the
severity of punishment which the court would have imposed. The court may however refuse
to consider these factors on the basis of disbelief, irrelevance, counter balance by
aggravating factors, effectiveness of a lenient disposal or public policy.
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Notes on Criminal Law II

(a) Age of the Offender: This may be in relation to old age or young age. See STATE v.
ADEYEYE & ANOR where the two accused were convicted for armed robbery but
the second accused was a minor. The court sentenced the first accused to death
while the second was remanded at the governor’s pleasure. The aged may also have
reduced sentences where the court feels they are no more threats to society.
(b) First time offending
(c) Provocation
(d) Having been in custody for some time
(e) The conduct of the offender after the commission of the offence
(f) Plea of guilty
(g) Non-prevalence of the offence
(h) Good work record
(i) Illiteracy
(j) Playing a minor role
(k) Membership of the same family

AGGRAVATING FACTORS

(a) Serious nature of the offence

(b) Abuse of position of trust
(c) Prevalence of the offence
(d) Playing a major role
(e) Previous conviction
(f) Element of professionalism
(g) Nature of the victim

CRIMINAL RESPONSIBILITY AND GENERAL DEFENCES

Generally, the basis of criminal responsibility is: there’s no liability without fault. Thus, man
as a free agent must be held accountable for such actions or omissions of his as fall within
those proscribed by the state. The exception to this general rule is the category of strict
liability offences. As this exception applies to the rule of liability, so does it apply to
defences against criminal liability. There are certain general defences that would not apply
to strict liability offences e.g. defences such as Accident, Mistake or Intoxication. This is
generally because intention is immaterial in strict liability and as such, any defence that
involves holding up a lack of intention as a shield would most probably fail.

In every criminal trial, the prosecution is expected to prove the defendant’s guilt beyond
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reasonable doubt. S. 135(1) Evidence Act. The burden of proof is on the prosecution and the
standard required is iron clad. The burden of proving that there is reasonable doubt will

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Notes on Criminal Law II

however fall on the defendant where the prosecution has led enough proof to show a solid
case against the accused. S. 135(3) Evidence Act. There is a further burden placed on the
defendant to prove the existence of circumstances bringing the case within any exception
or exemption from, or qualification to, the operation of the law creating the offence with
which he is charged. S. 139(1) Evidence Act. These circumstances are otherwise called
defences. The court has severally held that this burden on the accused is only on the balance
of probabilities. See S. 137 Evidence Act.

DEFENCES

Defences are those circumstances which, when present in a case, eliminate or reduce the
liability of an accused for the offence with which he is charged. Thus, the consequence of
raising a defence is two-fold. It may either exculpate the accused or reduce his liability.

An accused has a right to raise any defence in answer to any criminal charge and this right
can be exercised at any point during the trial (except in a few circumstances e.g. Alibi).
There is also a duty on the prosecution to point out any number of circumstances that may
exonerate the accused or reduce his liability and negative it if they can. This would not stop
the accused from still raising the defence though.

The court may also raise a defence on behalf of the accused suo motu especially where it
relates to insanity. Where an accused pleads guilty to a capital offence, the court has a duty
not to enter the guilty plea but substitute same for a plea of not guilty. This is another
instance of the court raising a defence.

Defences may be general or specific. General defences are those that can be raised in
respect of any/most offences under the law while specific defences are usually only available
for specific offences.

GENERAL DEFENCES

These include those defences provided for under chapter 5 of the Criminal Code. They can
be raised in any criminal trial as they apply to all offences in any written law. See S. 2(4) CC.

DE MINIMIS NON CURAT LEX

The De minimis rule is the effect that the court will not concern itself with trifles. This
defence is largely contained under the provisions of S. 58 PC. That section is to the effect
that nothing is an offence by reason that it causes or that it is intended to cause or
that it is likely to cause an injury if that injury is so slight that no person of ordinary
sense and temper would complain of the injury. The defence would thus be available where
the act or omission complained of is deemed too trivial to be adjudicated upon by a court of
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Notes on Criminal Law II

law. The defence is based on public policy and its purpose is to see that the time of the
court is not wasted on inconsequential matters.

The defence may be available even before the action is brought and the court may forbid
the prosecutor or complainant from bringing an action against the accused. The standard
thought is that of a person of ordinary sense and temper (how can this standard be met?
Reasonable man?)

COMMUNICATION MADE IN GOOD FAITH

The provisions of S. 56 PC are to the effect that no communication made in good faith is
an offence by reason of any harm to the person to whom it is made, if it is made for
the benefit of that person. The defence thus provides a bar to criminal liability where a
communication is made where there may be a contrary reaction to that communication and
such contrary reaction or harm occurs. The ingredients of the offence are thus:

 That the communication made by the accused was made in good faith
 That it was made for the benefit of the person to whom it was made

The communication must be made in good faith though. Good faith would be a mental
requirement and most probably one that does not involve any dishonesty or fraudulence. S.
37 PC further provides that “nothing is said to be done or believed in good faith which
is done or believed without due care and attention.” Thus, the person making the
communication must have done so with due care and attention i.e. not negligently.

The communication must also be made for the benefit of the victim. It is however difficult
to define what this benefit entails. Is it pecuniary, psychological, material or emotional?

ACCIDENT

The defence of Accident is provided for under both the Penal and Criminal codes. It is an
ancient defence that has strong roots in the common law. Where successfully raised, it has
the effect of totally exonerating the accused for any act or omission of his that occurs
without intention or a blameworthy state of mind. S. 48 PC is to the effect that nothing is
an offence which is done by accident or misfortune and without any criminal intention
or knowledge in the course of doing a lawful act in a lawful manner by lawful means and
with proper care and caution. The CC on its own, in S. 24 provides that 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.

The locus classicus of the defence of Accident under the common law is WOOLMINGTON
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v. D.P.P where the accused caused the death of the victim due to an accidental discharge of

37
Notes on Criminal Law II

a firearm, while he was attempting to take his own life. The defence was successfully raised.
Under the PC, the defence is a bit more stringent than under the CC. The conditions for
successfully raising the defence under the PC are:

 The act must be an accident or misfortune

 Absence of criminal knowledge/intention
 The event was a result occasioned in the course of doing a lawful act and in a lawful
manner
 Proper care and skill was exercised by the accused.

The only difference between the two codes is that there is no requirement for a lawful act
done in a lawful manner under the CC. Different outcomes might arise in the application of
the two codes to the same set of facts. In STATE v. GARBA, USMAN & ABAJA, the accused
was shooting guinea fowls in a cultivated area and he killed a girl by “mistake”. He was
charged under S. 224 PC and at the trial, while the defence he raised was Mistake, in
substance it was actually Accident. The court found him guilty because he was negligent and
held that neither Mistake nor Accident would avail him as he did not exercise proper care
and caution by firing the shot in a cultivated area. The plea of Accident would not have
availed him under the CC either as the clear caveat in the CC says subject to the express
provisions of this code relating to negligent acts and omissions.

Where he intentionally discharges the firearm in a township though, he would not be liable
under the CC for any injury the bullet causes if the environment is such that a 3 rd party
cannot reasonably be expected to be in. He would be liable under the PC though if the initial
discharge of a firearm is unlawful. This unlawfulness is not material under the CC.

Perhaps the most difficult task in considering the defence of Accident is answering the
question of what actually constitutes an accident. This situation applies to both codes.
According to Okonkwo & Naish, if the test for an event occurring by accident is reasonable
foresight, then an accused should not be held liable for any outcome of his acts or omission
which is not reasonably foreseeable. In R v. MARTYR, where the accused struck a blow at
another who had a heart condition. The person died and the accused was charged with his
murder. It was shown that it would be unusual for such blow to kill a person and but for his
peculiar weakness, the victim would be alive. The court however held that it was unlawful
killing as death was a direct result of the blow, notwithstanding the weakness of the victim.
According to them, the section would only apply where the final outcome was caused by a
subsequent unforeseeable happening i.e. a break in the chain of causation. How then do we
determine this foresight? There are three possible answers:

That an accident is an event which is too remote and indirect a consequence of the
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
accused’s unlawful act. Thus, the plea would be unavailable for an accused where the

38
Notes on Criminal Law II

outcome is a direct consequence of his act. This is consonant with the view in R v.
MARTYR.
 That an accident is an event which a reasonable man in the position of the accused
would not have seen as likely or probable. This is an objective test and is in tandem
with that expressed in the WAGON MOUND case. The court defined accident in
terms of foresight in VALLANCE v. R. in that case, the accused fired an air gun at a
group of children and hit one. He claimed he only intended to scare them and not hit
them. He was thus convicted on appeal.
 That an accident is an event which the accused himself would not reasonably have
foreseen as likely or probable. This is the view that most favours the accused as it
imputes a subjective test. In TIMBU KOLIAN v. R, the accused and his wife had an
argument and in order to escape her nagging, he went outside and sat. His wife
followed him there and frustrated, he picked up and aimed a light stick in the general
direction of her voice as it was dark. The stick struck and killed the child in her arms
which he didn’t know she was carrying. He was exonerated on appeal and the court
held that the outcome had occurred by accident as he could not have foreseen that
the child would be there at that point.

MISTAKE

The defence of mistake is similar in some respects to the defence of insane delusions. In
both, there is a false belief which, when acted upon, result in a different end than expected
in that belief. Delusions however relate to mental infirmity while Mistake only relates to
operation under an error of judgment.

Under the PC, S. 45 is to the effect that nothing is an offence which is done by a person
who by 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. The CC also provides in S. 25
that a person who does or omits 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 may be excluded by the express
or implied provisions of the law relating to the subject.

From a community reading of these sections, three distinct requirements for success under
the defence of Mistake emerge. They are:

 The mistake must be one of fact, not law.

The relevant maxim here is “Ignorantia legis neminem excusat”. The CC also makes provision
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to that effect under S. 22 with the qualification that the maxim would not apply where
knowledge of that law is expressly declared to be an ingredient of the offence. It is however

39
Notes on Criminal Law II

difficult to determine exactly what a matter of fact is as distinguished from a matter of

law because the two may be delicately intertwined. Matters of fact though may be said to
relate to things that can be perceived with the five senses whereas, matters of law are
more conceptual or notional. Therefore, in order to succeed with the plea, the defendant
must have been operating under a mistaken belief as to a state of facts. In SHERRAS v. DE-
RUTZEN, the defendant, a publican, was charged with giving alcohol to a constable while he
was duty. His defence was that he did not know that the constable was on duty. The court
accepted his plea of mistake as he was mistaken as to the state of facts. There are a few
exceptions to the rule of ignorance as to fact and not law though. The rule would not apply
to an insane person or minor because they lack the capacity to understand the law. It would
not also apply where a person executes an erroneous judgment or process in good faith and
with the belief that it was issued with valid authority. See S. 258 CC and S. 47 PC.

 The mistake must be as a result of an honest and reasonable belief that a certain
state of facts exists.

The mistake must both be honest and reasonable. In WILSON v. INYANG, the court per
Lord Goddard remarked that “a man may believe that which no other man of common sense
would believe but he may yet honestly believe it.” Thus, the belief may be unreasonable yet
honest or dishonest and yet reasonable. In R v. TOLSON, the court reaffirmed the view
that the mistake must be both honest and reasonable. This constitutes the emphatic
requirement of the law in Nigeria. In GADAM v. QUEEN, the accused believed that the
miscarriage and illness of his wife was due to the witchcraft of an old woman and he thus
killed her with a hoe. The court held that his belief was unreasonable even though it was
honestly held by him. It seems the test the court adopted here was objective. Amankwa was
of the opinion that a subjective test would have been more appropriate since the relevant
viewpoint is that of the accused but he also noted that it may have been justified on account
of public policy. The approach of the courts in the above decisions have unwittingly affected
the attitude of Nigerian courts such that several local beliefs such as witchcraft, magic,
‘juju’, and the existence of ghosts are frowned at in our courts. This is no more than an
importation of the common law position. See TUNDE GARKE v. STATE where the court also
took the position that a belief in witchcraft is unreasonable. Even though the case was
decided on the PC, the language used by the court disclosed more of a reliance on the
common law position and the terms used in GADAM v. QUEEN which was decided under the
CC.

It is further submitted that those cases of killing for witchcraft practice disclosed a
defence of Private defence and provocation especially as can be seen in the cases of GADAM
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and TUNDE GARKE. A consideration of these defences might have exculpated the accused.

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Notes on Criminal Law II

 The liability of the accused must be to no greater extent than if the mistaken state
of affairs were true.

The question that must be asked here is this: if the state of affairs as believed to exist by
the accused were true, would he be justified? Would such state of facts disclose a defence
to either reduce or extinguish his liability? He is therefore liable to no greater extent than
if the facts had been as he had believed them to be.

It is finally to be noted that based on the caveat to S. 25 CC, the defence of mistake can
be excluded by law. Thus, under S. 233 CC, where a sexual offence is committed against a
girl or woman who is below a specified age, it is immaterial that the defendant did not know
she was below such age or believed she was above that age.

HONEST/BONAFIDE CLAIM OF RIGHT

The defence of claim of right is closely allied to the defence of Mistake as it may, in certain
instances, entail a situation where a person claims property while honestly but mistakenly
believing it is his. The defence however is generally appropriate in relation to offences
relating to property.

S. 23 CC is to the effect that a person is not criminally responsible, as for an offence

relating to property, for an act done or omitted to be done by him with respect to any
property in the exercise of an honest claim of right and without intention to defraud.
The PC, in S. 45 does not clearly provide for this defence although it may be brought under
that section. The question of whether the defence only admits of a situation where a person
actually has a right to the property in question or simply believes he has such right when in
actual fact he does not was elucidated on in R v. BERNHARD. The court in that case 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.” Herein lies the similarity between
the defence and Mistake. The ingredients are thus:

 That the defendant believed he had a claim of right to the property in question
 That his belief was honest
 That his action was without intention to defraud.

In order to establish the defence, the defendant must prove that he was acting on an honest
belief that he had a claim of right to the property in question. The belief need not be
reasonable, although it must be honest. Such belief must also exist at the time of the act
or omission. The property in question here includes everything, animate or inanimate, capable
of being the subject of ownership. See S. 1 CC.
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The claim of right must also be without intention to defraud. Okonkwo & Naish believe this
provision is superfluous as there cannot be an honest claim of right when there is an intention

41
Notes on Criminal Law II

to defraud. Nonetheless, in order to disprove an intention to defraud, the defendant may

show that:

 He lacked the intention to deprive another of the property by deceit.

 He lacked the intention to cause unjustified economic or pecuniary loss to another
 He lacked the intention to induce a man to add to his own injury by deceit.

If any of the above is negatived, there would be an intention to defraud.

Once the defence is proved, it would exculpate a defendant in a Theft or other property
charge. In R v. VEGA, the accused was charged with stealing some corrugated iron sheets
found in the bush and overtaken by weeds. He raised a defence of honest claim of rights
and argued that the circumstances surrounding the object of the charge indicated strongly
that the goods were abandoned and that in law, abandoned goods are incapable of being
stolen. See S. 383(5) CC. The court held in his favour. Also, in OKORO v. C.O.P, where the
accused seized the complainant’s property in order to enforce payment of a debt, the court
held that he could raise a defence of honest claim of rights to the charge. The defence was
also successfully raised in R v. ROBINSON (supra).

PRIVATE DEFENCE

The defence of private defence is also referred to as self-defence. This is largely a common
law colloquial though. Nevertheless, the provisions under the common law position are
substantially the same as is contained under our codes.

The most basic instinct of a man is that of self-preservation and it is that instinct that is
giving legal recognition in this defence. A man would ordinarily act to protect himself, his
property or another person if sufficiently threatened. Even the constitution which protects
the right to life anticipates a derogation from that right for the protection of life and
property.

The defence is quite wide and as such must be strictly regulated to forestall the incidence
of abuse through carelessness or vengeance. Therefore, this defence and that of
provocation will only avail an accused where he acted in the heat of passion and without
reasonable opportunity to disengage and get help.

The provisions for private defence are substantially similar under both codes. It is however
desirable to treat them differently as the PC is more clear and anticipates a deal more than
the CC.

UNDER THE CC
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The CC provides in S. 32(3) that a person is not criminally responsible for an act or
omission if he does or omits to do the act when the act is reasonably necessary in

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Notes on Criminal Law II

order to resist actual and unlawful violence threatened to him, or to another person in
his presence. It anticipates a situation where a person has to act under threat of or actual
unlawful violence directed at him or another in his presence. Where he so acts, he would not
be criminally liable for any such act or omission that would have amounted to a crime had it
not been done in self-defence. Okonkwo & Naish believe this right extends to a charge
against the accused for destruction of property in self-defence though it is most
appropriate in a charge for killing and/or assault.

SS. 282 & 286-294 CC provide extensively for the defence. The defence may be stratified
into the defence of person and the defence of property as provided under the code.

Defence of Person

The defence of person begins with S. 286 which is to the effect that where a person is
unlawfully assaulted, without provocation on his part, it is lawful for him to use such force
as is reasonably necessary to defend himself. The proviso to that section however provides
that the force used in defence must not be intended or likely to cause death or grievous
harm. The gist of the defence under this section is then:

 There is an unlawful assault on the accused;

 It was without provocation;
 The force used in self-defence was reasonably necessary to make effectual defence;

The proviso to the section however reads that the force used must not be intended nor
likely to cause death or grievous bodily harm. This proviso would not however apply where
the nature of the assault is such that the accused reasonably apprehends death or grievous
harm and believes on reasonable grounds that he cannot preserve his assailant from death
or grievous harm. The defence must however be reasonably necessary and this depends on
the facts before the court. It must not have been done in vengeance either.

S. 287 provides for provoked assaults. That section is to the effect that in the event of
unlawful assault to another or provocation of assault from that other, which engenders an
assault from that other of such a nature that the defender reasonably apprehends death
or grievous harm and believes he must use force in self-defence, he is not criminally
responsible for using such force as is reasonably necessary for self-preservation even
though such force may cause death or grievous harm. The gist of the defence therefore is:

 There is an unlawful assault to another by the accused or provocation of assault from

that other;
 That other assaults the accused;
The assault is of such nature as to engender reasonable apprehension of death or
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
grievous harm;

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Notes on Criminal Law II

 The accused believes on reasonable grounds that it is necessary for him to use force
to defend himself from such harm even though the force may cause or causes death

The protection under this section will not however extend to a case where the defender,
whose force causes death or grievous harm, first began the assault with intent to kill or do
grievous harm to some other person or where he endeavoured to kill or do grievous harm to
another before the necessity of self-defence arose unless before such necessity arose, he
had quitted it or retreated from it as far as was practicable.

S. 288 provides for aiding in self-defence. That section is to the effect that in any case in
which it is lawful for any person to use force in any degree for the purpose of defending
himself against an assault, it is lawful for any other person acting in, good faith in his
aid to use a like degree of force for the purpose of defending such first-mentioned
person. The gist of the defence hereunder is:

 The circumstance is such as is lawful for the defence of self, i.e. the law as to
provoked and unprovoked assaults as well as reasonability of the force used;
 He was acting in good faith in aid of another;
 He uses a like degree of force as would be lawful if he was defending himself in those
circumstances.

The assistance must not have occurred after the assault has ceased though and by virtue
of S. 32(3) CC, the assault must have been in the presence of the accused.

Defence of Property

S. 282 CC provides that a peaceable possessor of a dwelling-house and anyone lawfully

assisting him or acting by his authority may lawfully use such force as is reasonably believed
to be necessary to prevent the forcible breaking and entering of the house by any person
reasonably believed to be attempting to break and enter into the house with the intention
of committing a felony or misdemeanour therein. The elements of the defence are:

 The accused is a peaceable possessor of a dwelling house or a person assisting him or

acting by his authority;
 The victim is reasonably believed to be attempting to break and enter into the house
with intent to commit a felony or misdemeanour;
 The force used is reasonably believed to be necessary to prevent the forcible
entering or breaking whether by day or night.

S. 289 allows reasonable defence against the taking of movable property by a trespasser. S.
290 allows the reasonable defence of movable property under a claim of right against any
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person, even the person entitled to possession of the property by law. S. 291 allows the use
of reasonable force in obtaining property which a person is entitled by law to possess from

44
Notes on Criminal Law II

another in possession who neither claims right to it nor acts by the authority of a person
that claims right if such person resists him. S. 292 allows a person in peaceable possession
of or entitled to management and control of any structure, vessel, land or place or any person
acting under his authority to use reasonable force in preventing wrongful entry or removing
any person who has wrongfully entered or conducted himself in a disorderly manner therein.
S. 293 allows the individual in the preceding section to reasonably defend his possession of
the property even against the person entitled by law to the property.

The running thread through SS. 289-293 is that the law requires that no harm be done to
the victim. This provision is incongruous though as it is inconceivable that property can be
defended without even the slightest harm. It is made even more so by the wide definition
of harm under S. 1 CC which is any bodily hurt, disease, or disorder, whether permanent
or temporary.

UNDER THE PC

The defence of private harm under the PC is contained under SS. 59-67. As mentioned
earlier, these provisions are quite clear, organized and admit of no confusion.

S. 59 is to the effect that nothing is an offence which is done in the lawful exercise of
the right of private defence. This right extends, by virtue of the provision of S. 60 to:

 The defence of one’s own body and the body of any other against an offence
affecting the human body; and
 One’s own property or that of another person, whether movable or immovable,
against theft, robbery, mischief or criminal trespass or any attempt to commit these
offences.

The PC in S. 61 further extends the right to instances where an act is not an offence only
by reason of the youth, want of maturity of understanding, unsoundness of mind, intoxication
or misconception of the person doing the act. In such instances where the act would have
been an offence but for the want of liability of that person, a defence of private defence
exists against such act as if that act was an offence. i.e. defending against rape or
attempted rape by an insane man.

Limitations to Private Defence

 The right of private defence, according to S. 62 PC, in no case extends to the

inflicting of more harm than is necessary to inflict for the purpose of defence. The
defence must therefore be proportionate to the assault.
 S. 63 PC is to the effect that there is no right of private defence in cases where
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there is time to have recourse to the protection of the public authorities. There is a
general feeling that this provision is a bit redundant especially in light of the Nigerian

45
Notes on Criminal Law II

reality where the police are not so ubiquitous. Even when they are present in the
vicinity, they are unreliable often. Also, the fact that the right of private defence
often arises in the heat of an attack on oneself makes it absurd to think that a person
so pressed would look out first and foremost for the nearest police officer or station
rather than the nearest object with which to make a defence. The caveat may
however apply where the attack is in the presence of the authorities or where they
are very close by.
 S. 64 is to the effect that there is no right of private defence against an act which
does not cause a reasonable apprehension of death or grievous hurt if it is done or
attempted to be done by a public officer doing an act justifiable in law and in good
faith or by the direction of a public officer acting lawfully and in good faith. Where
the act causes a reasonable apprehension of death or grievous hurt though, there
would be a right of private defence. Also, the right is not deprived unless the accused
knows or has reason to know that the person doing the act is a public official or that
it is being done at the direction of such official unless the person so acting by
direction states the authority under which he is acting or provides same authority in
writing if demanded.
 Another limitation would be that the right does not extend to the causing of death.
The exception to this limitation is however contained under SS. 65 & 66 PC. According
to S. 65, the right to defend the body extends, under the restriction in SS. 62 & 63,
to causing death where the act to be repelled involves:
o An attack which causes reasonable apprehension of death or grievous hurt; or
o Rape or an assault with the intention of gratifying unnatural lust; or
o Abduction or kidnapping.
 According to S. 66, the defence of property extends, under the restriction in SS.
62 & 63, to causing death where the act to be repelled involves:
o Robbery; or
o House breaking by night; or
o Mischief by fire committed in any human dwelling or place of keeping property;
or
o Theft, mischief or house trespass in such circumstances that may cause
reasonable apprehension of death or grievous hurt.
 S. 67 goes further to absolve the accused of liability in the exercise of the defence
against an assault which reasonably causes apprehension of death, where he is so
situated that he cannot effectually exercise the right without risk of harm to an
innocent person. His right of defence extends to running that risk.
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Notes on Criminal Law II

JUDICIALTEST ON SELF DEFENCE

These tests have been distilled by the courts to prevent the misuse of the right of private
defence especially for revenge. They were compiled by P.C. Ocheme. These tests may be
applied to any claim of self-defence to test the success of same.

 The golden scale doctrine would apply. The test is that no more harm shall be inflicted
than is necessary to avert the danger to life, limb or property. It is also called the
proportionality rule. In NWAMBE v. STATE the accused and the deceased had an
altercation on the road whereupon the deceased allegedly held the accused, beat him
and knocked out a tooth. The accused in return picked up a bamboo and hit the
deceased on the head and killed him. The court held that the force used by the
accused was disproportionate to the assault on him.
 There should be some kind of retreat by the accused, from the aggression of the
victim. This retreat is specifically provided for under S. 287 CC. the provision may
however be said to be illogical as it is unlikely that the accused, if given the
opportunity to retreat, would have had need to defend himself in the first place.
 There must be no evidence of revenge or premeditation on the part of the accused.
The defence must not also have been an afterthought.
 The activity in which the self defence took place must not have been an illegal one.
See SUDAN GOVERNMENT v. YASIR.

ALIBI

The literal meaning of the word ‘Alibi’ is elsewhere. The defence applies in instances where
the accused lacks mens rea and/or actus reus. It would not however apply in the case of
strict liability offences. The defence is to the effect that the accused, at the time of the
commission of the offence or act alleged, was elsewhere.

This defence is one of the best available to an accused if it can be raised at the right time.
The Supreme Court per Ogunbiyi JSC in EHIMEN ESENE v. STATE (2017) LPELR 41912
(SC), where the accused, who was alleged to have robbed the victim, raised the defence of
Alibi at trial and not in either of his two initial statements to the police, held that “Alibi is
one of the best defences available, provided it is raised with detailed particulars at the
earliest opportunity and not at trial. The defence succeeds when the trial court is satisfied
that it is probable that the accused was not at the scene of the crime, on the day the crime
was committed.”

The defence of alibi must be raised at the appropriate time. Notice of an intention to raise
the defence must be raised by the accused as soon as the charge is read. The best time to
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raise the defence is immediately the plea of the accused is to be taken. See R v. LEWIS
(1969) 2 QB 1 where the accused was alleged to have driven a car used to distribute stolen

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Notes on Criminal Law II

property. He wished to challenge this by showing that he was elsewhere at the material time.
The court held that his evidence was inadmissible as he had failed to give notice of his intent
to raise an Alibi within 7 days as required by S. 11 Criminal Justice Act 1967 and besides,
evidence as to the whereabouts of the accused at times other than the time when the
offence is alleged to have been committed is immaterial. See also AGBO v. STATE (1986) 3
NWLR 714.

Onus of proving the defence of Alibi rests on the defence. The prosecution however has a
burden to investigate the particulars of the defence as raised by the accused. In
MUSTAPHA TIJANI v. C.O.P (1994) 3 NWLR pt. 335 p. 692, the court held that “Once the
defence of alibi has been promptly and properly put up by the accused, the burden is on the
prosecution to investigate it and rebut such evidence in order to prove the case against the
accused beyond reasonable doubt. Failure of the police to investigate and check the
reliability of the alibi raised would raise reasonable doubt in the mind of the court and lead
to quashing of a conviction imposed in disregard of the requirement.” See also ADEGBITE v.
STATE (2015) where the appellant was alleged to have poured acid on the deceased, thus
leading to his death. The deceased identified the accused as the one who committed the
offence before his death. The court held that the defence of alibi would not avail the
accused because he did not raise it until his third statement to the police. The court further
held that unequivocal evidence tying him to the locus in quo destroyed his alibi evidence.

The Supreme Court, in BENSON UKWUNNEYI & ANOR v. STATE (1989) 4 NWLR pt. 114 p.
131, where the accused who was charged with murder of the deceased, raised a defence
that he was elsewhere but the police failed to investigate, gave eight (8) requirements for
the defence of Alibi:

 The defence of alibi by an accused person is a combined defence of lack of actus

reus and mens rea. He was not at the scene of the offence and could not possibly
have intended to commit it nor actually commit it.
 The primary and general onus of proving the guilt of an accused in a criminal matter
is on the prosecution throughout and never shifts. However, since the defence of
alibi is a matter peculiarly within the personal knowledge of the accused, the burden
of leading evidence of fact is on the accused.
 The best defence and evidence of an alibi is one pleaded at the earliest/first
opportunity and not at trial. See also EHIMEN ESENE v. STATE
 When the defence of alibi is raised by an accused giving names and tangible
particulars which can be cross checked at the investigation stage, it is the duty of
the investigating police to investigate it in order to ascertain its veracity.
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 Failure to investigate or verify the claim of alibi made will be fatal to conviction. See
also MUSTAPHA TIJANI v. C.O.P

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Notes on Criminal Law II

 Where an alibi raised by an accused is by its nature incapable of being verified

because of improbability on the face, it would be unnecessary to investigate.
 Disbelief of an alibi cannot be on the basis of the demeanour of the accused. It has
to be a logical conclusion arrived at after demolishing and discounting the main
strands supporting the claim.
 The success of the defence of alibi raised by the accused in a criminal case should
result in acquittal of the accused relying on the defence.

The court allowed the accused’s appeal on the ground that his defence of alibi was not
considered by the trial court and that the police, which had a duty to investigate the alibi
once raised at the earliest opportunity, failed to do so.

It must be noted that the defence of Alibi is pretty final and precludes any other general
defence that may rely on a lack of actus reus or mens rea. The accused cannot say he was
not at the scene of the crime and then aver afterwards that the event occurred by accident
or mistake or that he tried to exercise a bona fide claim of rights.

INSANITY

The defence of insanity is one of the most complex and controversial defences available to
an accused in a criminal trial. The issues with the defence ordinarily stem partly from the
fact that the court, which is no more than a layman in matters of clinical psychology, must
often rely on the knowledge of experts which is inexact and conflicting and partly from the
fact that the lawyer and court, which must consider the evidence of the medical expert, are
not often sure of how to treat this evidence. The defence is thus complicated and may not
always avail an accused. Indeed, research has shown that the defence is raised in less than
2-3% of criminal trials.

Insanity is more than just mental. It is also a social, legal and medical term. This shows that
it is multi-dimensional and this, probably, is another reason for its complexity. It generally
refers to a medical condition that will negate the accused’s criminal responsibility for his
acts or omissions that amount to crimes. A successful plea of insanity usually results in the
acquittal of the accused which is followed by committal to an institution pending recovery
or the pleasure of the president/governor. It has however been pointed out that such
committal may end up infringing the rights of the defendant if he continues to be kept even
after becoming whole. See JOHN W. HINCKLEY v. STATE (1981) where the accused tried
to murder American president Ronald Reagan, was found guilty but insane and remanded in
a psychiatric institution for treatment.

The defence alleges reduced mental capacity and this may be used in two ways. First, it may
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be used as a primary defence to liability for committing an offence. Second, it may be used
to determine the fitness of the accused to stand trial and make effective defence.

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Notes on Criminal Law II

The jurisprudential value of insanity relates primarily to the purposes of punishment. The
general notion of criminal liability in our jurisprudence is: there is no liability without fault
and where fault is found, a punishment is justified. Where the defence of insanity succeeds,
it is an acceptance of the fact that while the accused may have committed the criminal act
or omission, he is no more liable for it than if he had absolutely lacked the mens rea to
commit the offence. No punishment meted on him can thus be justified.

TESTS OF INSANITY

Several tests have been laid down over the years in an effort to provide a judicial attitude
to an accused’s claim of insanity. They include the Mc Naghten rules (right or wrong test),
the Irresistible Impulse test, the Durham rule (product test) and the Substantial Capacity
test.

The Mc Naghten rules emanated from the decision of the English judge in the Mc Naghten’s
case of 1843. Before the attempt to create a contemporary judicial attitude to insanity, the
position in England was that an accused would not escape criminal liability unless it was shown
that he was totally deprived of his understanding and memory and he did not know what he
was doing/was acting no more than an infant, a brute or a wild beast. This test was vague
and crude, existing around the early 1820s. Mc Naghten’s case however refined the position
and the test became that “an accused may be found not guilty by reason of insanity if, as a
result of a defect of reason from disease of the mind, the accused (i) did not know the
nature and quality of his act or (ii) did not know that his act was wrong.” This test has
however been criticized to the extent that the scope of the test is too narrow and discounts
other classes of insanity i.e. a person who knows the nature and quality of his act and knows
it is wrong but nevertheless commits the offence due to some uncontrollable impulse,
compulsion or paranoia.

The Irresistible Impulse test was developed as an answer to the inherent problems found
in the Mc Naghten rules. It was particularly developed to cater for those who could
distinguish between the nature and quality of an act and still are compelled to commit the
offence due to some intolerable emotional or psychological impulse that impels them. This
rule was also found to be limited as insanity is a changing concept and knowledge about it
changes per time. The vagueness of what constitutes this intolerable impulse also raised
issues. Would emotional pressure caused by intense physical pain qualify? There was also
criticism to the effect that the pressure which impels the accused to act need not be
strictly an impulse as emotional pressure may build up over a long period and “a man may act
coolly or calmly and yet be insane.”

The Durham rules were the result of further criticism of the Mc Naghten rule in the
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American District of Columbia. The rules were thus refined gradually until the case of

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Notes on Criminal Law II

DURHAM v. U.S where Bazelone J. stated the test to be that “an accused is not criminally
responsible if his unlawful act was the product of mental disease or mental defect.” This
rule was couched widely and gave a lot of room for the mental expert to show the court that
the particular mental deficiency raised by the accused qualifies. It was however criticised
to the extent that the terms ‘mental disease’ and ‘mental defect’ are dubious and subject
to change at a moment’s notice and because of this, too much leeway and control was given
to the medical expert over the fact of insanity.

The Substantial Capacity test was developed by American scholars of the American Law
Institute. It rejected the Durham rule and developed a modified version of the Mc Naghten
and Irresistible Impulse tests.

INSANITY UNDER NIGERIAN LAW

Insanity is provided for under SS. 27 & 28 CC and S. 51 PC. There is some variance between
the two provisions.

The provisions of the CC are evidently a codification of the Mc Naghten rule, Irresistible
Impulse test and the Durham rule. S. 27 provides that “every person is presumed to be of
sound mind, and to have been of sound mind at any time which comes in question, until
the contrary is proved” while S. 28 is to the effect that “a person is not criminally
responsible for an act or omission if at the time of doing the act or making the omission
he is in such a state of mental disease or natural mental infirmity as to deprive him of
capacity to understand what he is doing, or of capacity to control his actions, or of
capacity to know that he ought not to do the act or make the omission.” The two section
must be read together. Aguda tried to distinguish between these provisions and the Mc
Naghten rules, arguing that the phrase ‘natural mental infirmity’ was absent in the old rule.

S. 51 PC provides that 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. The provision under
the PC is evidently wider than that provided under the CC. The effect is that while the CC
may prove redundant eventually, the PC, by only specifying unsoundness of mind, will always
be relevant.

The defence of insanity under the Nigerian law may generally arise before or during trial.
In either case, the effect of the defence may be to allege that the accused is not
responsible for the offence due to insanity or that he is incapable of making a defence.

Incapacity to Make a Defence

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Where the court has reason to suspect or believe, before the commencement of the trial
or during the course of the trial, that the accused is of unsound mind and will not be able to

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Notes on Criminal Law II

make a valid defence, the court has a duty to investigate the matter of the accused’s sanity
or otherwise before proceeding further. The court may utilize such medical evidence as it
may require for this inquiry.

Where the medical evidence certifies the accused sane, the court may accept the evidence
and proceed with the inquiry. In this event, the accused is called upon to proceed with the
case and make his defence. Where the evidence certifies the accused insane or incapable
to make his defence, the court may accept same and halt the trial. The accused would then
be released on bail and remanded pending the pleasure of the President or Governor or until
such time as he may continue his defence.

We must note that the incapacity to make a defence referred to here, extends to more
than just insanity within the meaning of insanity as provided under the relevant sections in
the PC or CC. It may also admit of other conditions, both physical and mental that may make
the accused incapable of making his defence.

Elements of the Defence

Two major elements must be proved before a finding of insanity can be made. They are:

1. That at the time of committing the offence, the accused was in a state of either
mental disease or natural mental infirmity.

Mental disease as anticipated under this ingredient is more psychological/psychiatric than

behavioural. Its causes are often inexact. It may be caused by several things including
depression, paranoia etc. What is however certain is that mental diseases are recognized as
being capable of stimulation. They may deteriorate or improve depending on the application
of appropriate medicine. While the ambit of diseases is wide and their causes inexact, the
court must determine, based on the evidence of the experts, whether the degree of disease
is sufficient to relieve the criminal liability of the defendant.

Natural mental infirmity was defined by the court in R v. OMONI as “a defect in mental
power neither produced by his own default nor the result of disease of the mind.” It is thus
clear, from a reading of this definition and the distinction made in the code, that ‘natural
mental infirmity’ is intended to go further than mental disease. This definition of the court
was adopted in R v. TABIGEN where the court further stressed that a defect in mental
power may not be equivalent merely to inability to master the passion. Mental defect is
congenital or hereditary. Its causes can be traced and it is more like mental abnormality.
The English Mental Deficiency Acts of 1918 to 1938 provide a useful meaning of mental
defect. It is defined therein as “a condition of arrested or incomplete development of
mind existing before the age of eighteen years, whether arising from inherent causes
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or induced by disease or injury.”

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Notes on Criminal Law II

The Acts further provided, in S. 1, for mental defect in terms of ability to look after oneself
and created four classes viz. the Idiots, Imbeciles, Feeble-minded persons and Moral
Defectives. Of all these, the last is the most dangerous. Perhaps, the psychopath or
sociopath who, by their nature, are unable to adjust to social norms and are more likely to
engage in anti-social behaviour, fall within the moral defectives. It is however questionable
if they can be said legally to have a natural mental infirmity.

The court in R v. OMONI held that the defect in mental power must not be produced by the
accused’s own fault. In R v. ERIYARHREMU, the accused claimed to have killed her albino
granddaughter due to the dictates of her peers in witchcraft. The court held that this was
self-induced infirmity and not natural. As far as the insanity is caused by natural mental
infirmity, no issue of self-inducement can arise as it is, by its nature, without the accused’s
default. Self-inducement would then apply majorly to mental disease which can improve or
deteriorate depending on one’s actions.

Finally, the material time for which the mental disease or defect is considered is at the time
of committing the offence. The sanity or insanity at the time of trial is immaterial for the
purpose of the time the offence was committed.

2. That the mental disease or defect was such as to deprive the accused of:
a. Capacity to understand what he is doing

The interpretation here must be taken in context. It should be kept in mind that ‘knowing’ a
thing is different from ‘understanding’ that thing. A man may know what he is doing but may
yet lack the capacity to understand the implication of his acts. Understanding is therefore
wider than knowing and must not be confused with each other.

b. Capacity to know that he ought not to do the act or make the omission

This requirement is evidently available to those may understand what they are doing and yet
have no knowledge that they ought not do the act or make the omission. In the case of R v.
WINDLE, the court held that the knowledge here is knowledge that the act or omission is
contrary to law. Thus, the material consideration for the court as per this holding is whether
the accused knew that the law forbade his act or omission. As such, the accused in that case
was held unentitled to the evidence because he knew that the law forbade him to kill his
wife but he argued that he felt it was morally right to do so. The implication of this holding
is that the law restricts the ambit of the defence.

In R v. STAPLETON though, the court refused to accept the holding in R v. WINDLE. It

was rather held that the correct test is whether the accused could tell the difference
between good and evil and not merely the legality or otherwise of his act or omission. This
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decision is also questionable though as the standards of good and evil are subjective and are

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Notes on Criminal Law II

in any event, usually measured by the courts in terms of legality or illegality. How does the
court then determine if the accused has been able to distinguish between good and evil?

c. Capacity to control his actions

On this third requirement, it is possible that the accused understand his act or omission,
with full knowledge that it is wrong and contrary to law and yet be unable to stop himself
from doing it. It was thus held in R v. OMONI that this leg allows a defence for an accused
acting under an irresistible or uncontrollable impulse. This has however been criticized
because it is difficult to inquire into the ability or otherwise of the accused to control his
impulse and in any event, the fact of an impulse being irresistible or uncontrollable has no
definite meaning or metric. How does the court decide the impulse was uncontrollable when
it is a circumstance more commonly within the knowledge of the accused?

Thus, while it is not stated in the statue, this leg of insanity is a bit strict. The testimony
of the accused as to his own incapacity may not be enough. The court may further look for
corroboration in other evidence. As such, in R v. OMONI, the court dismissed the appeal as
the only evidence as to irresistible impulse was that of the accused. The defence was allowed
in ECHEM v. R where the testimony of the accused was corroborated by medical evidence.

Non-Insane Delusions

The CC provides a further defence under S. 28. That provision is to the effect that “a
person whose mind, at the time of his doing or omitting to do an act, is affected by
delusions on some specific matter or matters, but who is not otherwise entitled to the
benefit of the foregoing provisions of this section, is criminally responsible for the act
or omission to the same extent as if the real state of things had been such as he was
induced by the delusions to believe to exist.”

This defence is no more than a continuation of the Mc Naghten rules. It provides a defence
for a person who does not qualify under the provisions on insanity but still is affected by
delusions on some matter(s) that impact his responsibility for the act. He will be held
responsible to the same extent as if the matter(s) was as he, induced by the delusions,
believed it to be. This defence is clearly similar to Mistake although, the element of
reasonability will obviously be left out as a deluded person can hardly be said to have any
capacity for reasonability. It must be honest though. The accused must thus prove that:

 His mind was affected by delusions on some specific matter(s)

 The delusions induced him to believe that a certain state of things existed
 He would be justified under the law where the state of things, as he had believed
them to be, actually true.
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Notes on Criminal Law II

In R v. GRUMAH, the court adopted a definition of delusions which is “a symptom of mental

disturbance and a false belief which is unshakable by facts.” What would constitute these
delusions however? Paranoiacs seem to be covered here, so are Monomaniacs. It may thus
be inferred from that definition that in order to establish the defence, the accused must
prove that his delusions were due to some form of mental disorder falling short of mental
disease or mental defect. Not all delusions are however acceptable on grounds of public
policy. The effect of the state of affairs as believed to exist would determine the liability
of the accused. In IWUANYANWU v. STATE, the accused, affected by delusions, believed
the deceased would send evil spirits to kill him. He thus waylaid the deceased and killed him
first. He was held unentitled to the defence as he could not claim to have acted in self-
defence if the facts as he believed them to be were true.

It is questionable whether S. 51 of the PC would also cover delusions. In light of the wideness
of the term used though, it may be successfully argued. The test of non-insane delusions
has however been criticized because it seems that the law recognizes that delusions are a
product of insanity though of a lesser degree and yet imposes a higher degree of
responsibility on the deluded accused. Thus, the law is in effect saying “even though we
recognize that you are insane, you must take care how you exhibit it.”

Proof of Insanity

Due to the presumption of sanity contained in S. 27 CC, the accused has the duty of
rebutting this presumption and proving the fact of his own insanity. This seems to go against
the general rule in criminal trials codified in S. 135 Evidence Act, which holds that the
prosecution must prove the accused’s guilt and not that the accused must prove his own
innocence. See also S. 36(5) CFRN. This provision is however derogated from in S. 139(3) (c)
Evidence Act which imposes a burden on the accused to prove a defence of Intoxication or
Insanity.

The accused may prove his insanity by leading evidence as to lack of motive, proof by
parents, relations and neighbours or medical evidence.

In cases of killing especially, motive is a relevant indicator of premeditated actions. One

who kills as a result of insanity would however lack any real motive because by default, acts
of insanity often defy comprehension/reason. Thus, lack or presence of motive may become
a relevant issue where other evidence points to insanity though not conclusively. In
ADEYEFA v. QUEEN, where the accused killed a ten-month old boy for no apparent reason,
the court accepted the plea of insanity as there was no motive and there was no evidence to
disprove insanity. In R v. ASHIGIFUWO, the accused killed a woman whom he once described
as loving as his own mother. The apparent lack of motive along with other testimony was
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considered by the court in finding him insane.

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Notes on Criminal Law II

Lack of motive alone is insufficient though and must be supported by other credible evidence
because persons may have ulterior motives not readily evident to all as was held in ADEYEFA
v. QUEEN. Thus, supporting evidence in the form of testimony of parents, relations and
neighbours is quite useful in proving insanity. In R v. INYANG, evidence by witnesses showed
that the accused suffered severe headaches, wandered about at night, laughed insanely,
spoke in meaningless language inter alia. The court attached great store to the evidence of
the witnesses. In R v. ASHIGIFUWO too, the accused’s relations testified that the accused
had been insane on earlier occasions and had to take medication. The prison warden also
testified that the accused often laughed irregularly. This evidence was taken as proof of
insanity.

The insanity or otherwise of the accused can also be proved by medical evidence. While the
material time for insanity is the time of committing the offence, evidence of mental
abnormality immediately before or immediately after the commission of the offence may
corroborate a finding that the accused was insane at the time the accused did the act. This
was stressed by the court in YUSUFU IDOWU v. STATE where the accused had killed the
deceased because he feared the deceased would report him for stealing maize. The accused
in claiming insanity, brought two medical reports which failed to state clearly whether the
insanity existed at the time of the killing, the second report spoke of lucid intervals but
failed to show that the killing was not during a lucid interval. Lucid intervals were defined
by Earl Jowitt as periods separating two attacks of insanity. The court rejected the
evidence and held that the accused was not entitled to the defence. Thus, the medical
evidence must be precise and clearly show that the accused could not have been sane at the
time of commission. In WILLIE v. STATE, where the accused killed his mother with the
belief that he was being bewitched by her, the medical evidence certified that the accused
showed traces of abnormality but these traces were not latent. The court rejected the plea
of insanity.

INTOXICATION

The defence is provided for under S. 29 CC and S. 44 PC. There are material differences
between the defence as provided under the CC and PC. They will thus be considered
separately. Notwithstanding the differences however, the general classification of
intoxication into voluntary and involuntary intoxication applies to both codes.

Under the CC

S. 29(1) CC is to the effect that intoxication, generally, will not constitute a defence to any
criminal charge, save as provided by the section. Thus, there is no general defence of
intoxication. The CC further provides in (5) that intoxication may include a state produced
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by narcotics or drugs. This provision is absent in the PC.

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Notes on Criminal Law II

Involuntary Intoxication

The provision of S. 29(2) (a) CC is to the effect that “intoxication shall be a defence to
any criminal charge if by reason thereof the person charged at the time of the act or
omission complained of did not know that such act or omission was wrong or did not
know what he was doing and the state of intoxication was caused without his consent
by the malicious or negligent act of another person.” (3) further provides that a
successful plea under this section will entitle the accused to a discharge. The ingredients
are thus:

 That the accused was intoxicated at the time of doing the act or making the omission
 That the state of intoxication was caused without his consent by the malicious or
negligent act of another
 That the intoxication was such that he did not know the act or omission was wrong or
did not know what he was doing

Thus, under this provision, a person who has been involuntary intoxicated will have his
liability completely extinguished if he can successfully prove the defence. The intoxication
must however be malicious or negligent. Accidental intoxication will not avail under this
section. He also has to prove that the intoxication was such that he did not know the act or
omission was wrong or did not know what he was doing. Proof of the first part would be the
same as that required under Insanity.

Voluntary Intoxication

S. 29(2) (b) CC provides that “intoxication shall be a defence to any criminal charge if
by reason thereof the person charged at the time of the act or omission complained of
did not know that such act or omission was wrong or did not know what he was doing
and the person charged was by reason of intoxication insane, temporarily or otherwise,
at the time of such act or omission.” (3) further provides that a successful plea under
this section would result in the application of SS. 229 & 230 CPA. Those sections provide
for a finding of not guilty by reason of insanity and subsequent committal of the defendant
pending the Governor’s pleasure. The ingredients of the defence are thus:

 That the accused was voluntarily intoxicated at the time of doing the act or making
the omission
 That the accused was insane by reason of the intoxication
 That the insanity was such that he did not know that the act or omission was wrong
or did not know what was doing.

The provisions on voluntary intoxication evidently anticipate a situation where the accused
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has, by his own act, induced his intoxication. He is obviously held to a higher standard of

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Notes on Criminal Law II

responsibility than the one that was intoxicated against his consent. It appears from this
section that the CC merely provides an extension to the rule on Insanity albeit temporary
insanity or otherwise, induced by intoxication. Thus, the standard required of the accused
here is the same as that in Insanity. He must show that he was, by virtue of the intoxication,
insane, and the insanity was such that he did not know the act was wrong or did not know
what he was doing. The methods of proving Insanity would also apply here and most
importantly, the burden of proof imposed in S. 139(3) (c) Evidence Act would also lie on the
accused here.

Intoxication and Intent

The CC provides again in S. 29(4) that “intoxication shall be taken into account for the
purpose of determining whether the person charged had formed any intention, specific
or otherwise, in the absence of which he would not be guilty of the offence.” As such,
even if the accused cannot benefit from either of the foregoing sections, the fact of his
intoxication may yet serve to negative criminal intent. Thus, proof of this intoxication may
serve to disprove intent where it is an element of an offence.

Whether the intoxication would be held to negative intent depends on the circumstances of
the case. In R v. OWAREY (1939) 5 WACA 66 where the accused had an argument with the
deceased, left in anger, drank heavily, came back with a gun and extra cartridges, muttered
under his breath that “someone will die today” and shot the deceased at a vital spot and at
close range, the court held that he had formed a specific intent to murder the deceased.
On the other hand, in KOFI MENSAH v. R (1952) 14 WACA 174, the accused, who had been
disappointed in love by the deceased, invited her to the farm, drank heavily and according
to his testimony, blacked out until he came to and found himself lying alongside the deceased
and covered in blood. He tried to kill himself, failed and surrendered himself to the
authorities. The court inferred that his intoxication negatived intent to kill.

The accused cannot argue however that he would not have formed an intent to commit the
offence if he had been sober. It was held in D.P.P v. BEARD (1920) AC 479, where the
accused, who was drunk, saw a girl of 13 years, demanded that she have sex with him and
strangulated her when she refused, that it is immaterial if the intoxication makes the
accused more readily give in to his passions. Again, if the intent was formed before the
offence was committed but the accused had blacked out, the prosecution may yet succeed
as the intent had been formed already. Regardless of whichever the outcome turns out to
be, it is clear that these constitute an exception to the principle of concurrence of actus
reus and mens rea.
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Notes on Criminal Law II

Under the PC

Voluntary Intoxication

The provision under the PC is not so much a defence as a qualification of the presumption of
an accused’s knowledge in cases of intoxication. Section 44 provides that “a person who
does an act in a state of intoxication is presumed to have the same knowledge as he
would have had if he had not been intoxicated.”

The purport of that section is that an accused, though intoxicated, is still presumed to have
the knowledge that a sober man would have had in those circumstances. The presumption
here seems to be irrefutable. Thus, where criminal knowledge is an element of the offence,
he cannot raise his intoxication as a bar to having the requisite knowledge. This provision
does not apply to intention though. The accused may raise the fact of intoxication as proof
of lack of intent though the success of such an argument is questionable.

What is evident is that the PC does not entirely recognize voluntary intoxication as a
defence to any criminal charge. The most that can be inferred is that it can be raised merely
to disprove lack of intent or other mental element aside knowledge. It may be reasoned
though that if the intoxication is such as to cause unsoundness of mind, the accused may
raise a defence of Insanity under S. 51 PC. This is very questionable though.

Involuntary Intoxication

S. 52 PC provides that “nothing is an offence which is done by a person who, at the time
of doing it is, by reason of intoxication caused by something administered to him without
his knowledge or against his will, incapable of knowing the nature of the act, or that
he is doing what is either wrong or contrary to law.” The ingredients are thus:

 Some substance was administered to the accused without his knowledge or against
his will
 The substance caused the accused to become intoxicated at the time of committing
the offence
 The accused was, by reason of that intoxication, incapable of knowing the nature of
his act or that what he was doing was either wrong or contrary to law.

The requirements as to the nature of the act and capacity to tell wrong from right or legality
from illegality are similar to that provided in the CC. The involuntariness of the intoxication
here would however admit of accident.

The major shortcoming in this provision is that it fails to expressly anticipate a situation of
intoxication arising from drugs. Although, the use of the word ‘something’ seems pretty wide.
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Notes on Criminal Law II

PROVOCATION

The defence of Provocation is provided for under SS. 283, 284 & 285 CC and S. 38 PC. The
substance of the defence under the two codes is essentially the same. They will thus be
considered together.

Provocation is defined under S. 283 CC as “any wrongful act or insult of such a nature as
to be likely, when done to an ordinary person, or in the presence of an ordinary person
to another person who is under his immediate care, or to whom he stands in a conjugal,
parental, filial, or fraternal relation, or in the relation of master or servant, 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.” A successful plea of provocation would afford a complete
defence to an assault except where such assault leads to death. S. 318 CC is to the effect
that where a person kills another in circumstances that would have amounted to murder save
for some grave and sudden provocation that causes him loss of self-control, he is guilty of
manslaughter only.

The PC does not make any blanket provision for provocation other than that in S. 38 and
that section merely outlines instances that would not amount to provocation. It however
incorporates provocation in the particular sections that punish offences but only scales down
the punishment in cases of provocation rather than providing a complete defence like the
CC. See S. 266 PC which punishes assault. S. 222(1) PC also scales down murder to
manslaughter in cases of provocation.

From a community reading of the sections in the two codes, the elements that must be
proved in a plea of Provocation are:

1. There must have been some provocation done to the accused or to someone related
to the accused by another person

The provocation here may be an act or an insult (words). For an act to constitute provocation,
it must have been wrongful. A lawful act, including acts done in self-defence, cannot
constitute provocation. See S. 283 CC and S. 38(b) & (c) PC. Although, an arrest which is not
lawful may be provocation if the accused knows of the illegality. Provocation sought or
voluntarily provoked by the accused will not qualify either. See S. 38(a) PC.

2. The provocation must have been such as to cause a reasonable person to lose his self-
control and the accused must have lost his self-control

The test here is the effect of the provocation on a reasonable man in the position of the
accused and not the effect on the accused himself. The reasonable man in this context, as
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held in R v. ADEKANMI (1944) 17 NLR 99, is a reasonable man of the accused’s standing in
life.

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Notes on Criminal Law II

The accused must have lost his self-control. It is not sufficient to show that a reasonable
man would have lost his self-control but the accused didn’t.

3. The provocation must have been sudden

The wrongful act or insult must have been sudden. Previous acts or insults do not qualify
although they may be taken into consideration to determine the sufficiency of the last piece
of provocation.

4. The act of the accused must have been in the heat of passion

The act of the accused must have been done upon the sudden provocation and before there
was time for his passion to cool. In R v. GREEN (1955) 15 WACA 73, the accused saw his
wife having intercourse with another man. He went home, brooded for a while and came back
with a machete whereupon he killed his wife and her mother. The court held that his act was
not in the heat of passion.

5. The mode of resentment must be reasonably proportionate to the provocation

offered

This the rule of proportionality and it holds that the accused’s act must bear a reasonable
proportion to the provocation. The court may consider the nature of the instrument used
and the nature of the act resulting from the provocation.

The sufficiency of provocation is a matter of fact and must be determined by the court
based on the peculiar circumstances of the case in question. See S. 284 CC.

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