CLASSIFICATION OF OFFENCES

Various approaches can be adopted in classifying offences, For instance, the division of offences
into those against the person, against the state and against property is merely a rough division for
academic purposes and have no legal consequences.

In English Law, there is also the classification of offences into common law and statutory
offences, but in Nigeria, all crimes are now statutory. This is because of the constitutional
requirement of that no person shall be punished for an offence that is not contained in a written
law. (See S.36 (12)) of the CFRN 1999.

In Nigeria, the only classification of importance is contained in S.3 of the Criminal Code (CC).
This section divides offence into;

1) Felony
2) Misdemeanour and
3) Simple offences.

This division is based roughly on the gravity of the offences as will be seen in its definition.

1) A felony is any offence which is declared by law to be a felony, or is punishable, without

proof of previous conviction, with death or with imprisonment for three years or more.
2) A misdemeanor is any offence which is declared by law to be a misdemeanor, or is
punishable by imprisonment for not less than 6 months, but less than 3 years.
3) All offences, other than felonies and misdemeanour are simple offences. (See S.3 of CC)

Note that since the word offence applies to any act or omission rendered liable to punishment
under legislative enactment (See S.2 of the CC), this classification extends to all offences in
Southern Nigeria. (See Salisu v Police (1960) WNLR 213).

The above classification have legal consequences that are both procedural and substantive.

Procedurally, note that

1) The power of a private person to arrest suspected misdemeanant is more limited than his
power to arrest a suspected felon. (See S.12 of the Criminal Procedure Act (CPA))
2) When an offence is a felony, bail conditions are stiffer (See S.119 of the CPA)
In relation to substantive law, the consequences of the classification are:

1) It is only in respect of felonies that there are offences like compounding felonies (See
S.127 of the CC) and neglect to prevent the commission of an offence. (See S.515 of the
CC)
2) The punishment for attempts or conspiracies to commit offences, and for being an
accessory after the fact will vary in accordance with whether the substantive offence, if
committed was a felony, a misdemeanour or a simple offence and
3) There are some defenses that are available to charges of assault or more serious types of
harm which result in death where committed by public officers or private citizens while
preventing the escape of a felon that are not available to other types of murder. (See S.
271, 272 of the CC)

PRELIMINARY OFFENCES

As a general rule, a mere intention to commit a crime does not amount to a crime until it is
accompanied by an overt act. The law in its preventive nature is very mindful of the danger of
holding a man innocent until he has actually committed the intended crime. Therefore, if a man
has started making efforts to put his intention into effect, he may be punished even though he
hasn’t really achieved his aim. These acts are known as preliminary offences, the most important
of which are ‘ATTEMPT’ and ‘CONSPIRACY’.

ATTEMPT

The Black Law dictionary, defined attempt as “The act or an instance of making an effort to
accomplish something especially without success. An overt act that is done with the intent to
commit a crime but that falls short of completing the crime. It is an inchoate offence distinct
from the intended crime. It includes any act that is a substantial step towards commission of a
crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering
a building where a crime is expected to be committed.”
It is an offence to attempt to commit any offence.(See S.4 of the CC and S. 95 of the Penal Code)
In certain offences, the punishment for an attempt is specified, e.g, life imprisonment for
attempted murder (S. 320 of the CC), or armed robbery with violence(See S.403 of the CC), 14
years for attempted arson (See S.444 of the CC). Punishment for attempt varies depending on the
gravity of the intended crime. (See S. 509, 510, 511 of the CC)

From the definitions and statutory provisions already supplied, the basic ingredients of the
offence of attempts includes the following;

1) There must be an intention to commit an offense

2) Steps must have been taken in order to fulfil the intention
3) There must have been a manifestation of the intention by some overt act
4) The offence must not have been committed.

The Intent

The prosecution must prove that the accused intended to commit the offence which he is alleged
to have attempted. In R v Offiong (1936) 3 W.A.C.A. 83, the accused entered a woman’s room
uninvited, took off his clothes, expressed a desire for sexual intercourse with her, and actually
caught hold of her. The Court held that “these acts fell short of an attempt to commit rape. They
are merely acts indicate the accused wanted to have and had made preparation to have
connection with the complainant”. There was no evidence that Offiong intended to force the
sexual intercourse upon the woman without her consent, and therefore this could not be
attempted rape since intent to do it without the woman’s consent is of the essence in rape as
defined in Section 357 of the Criminal Code.

Since S.4 requires proof of intent ‘to commit an offence” and not merely intent to do an act
which constitutes an offence, in proving intent, the prosecution must show that the accused
person knew that what he is intending to do is an offence.

Since an accused must intend to commit an offence, he cannot be guilty of attempting to commit
a crime which can be committed only recklessly or negligently, therefore, in R v Ejikeme
(1944)10 W.A.C.A.252, it was held that a man could not be guilty of attempted manslaughter by
negligence. He, however, can be guilty of attempted manslaughter by intentional killing (e.g. in a
case of attempted killing after provocation). In R v Albert (1960), it was held that a man could
not be guilty of attempted murder by reckless act. The basis for this decision is that there must be
an intent to kill before a charge of attempted murder can be sustained.

The actus reus

What sort of act constitutes an attempt? Or How far must the accused have progressed with his
plan before it can be said that he is guilty of an attempt? Section 4 of the Criminal Code in effect
requires three element for the actus reus of attempt:

(i) That the accused has begun to put his intention into execution by means adapted to its
fulfillment
(ii) That his intention has been made manifest through some overt act;
(iii) That he has not fulfilled his intention to such an extent as to commit the offence.

In shedding light on these ingredients some cases will be examined.

In Usman v State (2010) 6 N.W.L.R. (pt. 1191) 454, the appellant, a former police officer, was
charged, along with other persons, with illegal possession of locally made guns, possession of
police uniforms and kit with intent that the appellant belongs to the Nigeria Police Force, forgery
of letterheads of State Security Service (SSS) with intent to impersonate as a public officer. The
appellant was discharged and acquitted on three of the counts but was convicted and sentenced
for the offence of attempt to commit offence. Dissatisfied with the trial court’s decision, he
lodged an appeal before the Court of Appeal.

Unanimously dismissing the appeal, the court, per Denton-West JCA, noted that “a person would
only be convicted of attempt to commit an offence in the circumstances where the steps taken by
him in order to commit the offence, if successfully accomplished, would have resulted in the
commission of the offence”, adding that “in the instant case, there is no doubt that the appellant
intended to commit an offence”.

In determining this appeal, the court applied what is known as the proximity test i.e. whether
there is a connection between the act and the offence. In other words, for the act of the accused
person to amount to an attempt, it must not be remote to the commission of the offence. In the
Usman’s case, the court stated that “attempt to commit offence is an act which must be
immediately connected with the commission of a particular offence charged. It can be inferred
from the proximity test that, it is not required that the accused person should commit all the
ingredients of substantive offence but he must have gotten to a point where he would have
committed the last one if he were not timeously interrupted, e.g through an arrest. See Kalu v
Nigerian Army (2010) 4 N.W.L.R. (pt, 1185) 433, Omoregie v State (2009) 10 N.W.L.R. (pt.
1150) 493.

For a charge of attempt to commit an offence to be sustained, the prosecution must state and
prove the ingredients which constitute the actus reus of the offence beyond reasonable doubt.
Also, for an attempt to commit an offence to be sustained, the substantive offence itself must
exist and be clearly stated in a written law. The accused person must also not have committed the
substantive offence, otherwise he will be liable for the said offence and not an attempt to commit
same. See Kalu v Nigerian Army (2010) 4 N.W.L.R. (pt, 1185) 433.

For attempted murder or attempt to commit murder can be sustained, the salient ingredient
that must be established include, firstly, the accused person must have formed an intention to
kill. Secondly, he must have taken steps in order to fulfil that intention, that is to say he must
have put his intention into execution by means adapted to its fulfilment. Thirdly, the accused
person must have manifested his intention by some overt act, and finally, the accused person
must not have fulfilled his intention to such an extent as to commit the offence. See Omoregie v
State (2009) 10 N.W.L.R. (pt. 1150) 493.

See the following cases;

R v Olua (1943) 9 W.A.C.A. 30, R v Ajani (1936) 3 W.A.C.A 3, R v George (1936)3 W.A.C.A
31.

Attempting the Impossible

In S 4, a person can be held liable for an attempt to commit an offence even if it is impossible to
commit such an offence. Thus, where a man thrusts his hand into the pocket of another with an
intent to steal but unknown to him that the pocket is empty, he will be liable. See R v Ring
(1892) 8 T. L. R. 326. Also, if a woman places poison in a drink with an intent to kill her rival,
even though the dose could not, in fact kill anyone, she will be liable. See R v White (1910) 2
K.B. 124.

Note that for liability to be created in these cases, it must be shown that the accused person has
begun to put his intention into effect and has even manifested it through some overt act.

This rule will not apply to circumstances in which the impossibility is a legal impossibility. For
example, under section 30 of the Criminal Code, a boy or girl under seven years is not criminally
responsible for any act or omission. Thus a boy of this age cannot legally steal, he cannot
therefore be held liable for an attempt to steal.

Again, if a man sets out to do something which, contrary to his belief at the time, does not
amount in law to a crime if successfully completed then he cannot be held liable for attempt. See
Haughton v Smith (1974) 3 All E.R 217. Thus, a man cannot be guilty of attempt to steal if,
unknown to him, the goods he is attempting to steal actually belongs to him. See R v Collins
(1864) 9 Cox C.C 497, r v Odo (1935) 4 W.A.C.A. 71.

Conspiracy

The Supreme Court in Omotola v State (2009) 7 N.W.L.R (PT 1139) 148 defines conspiracy as
the agreement by two or more persons to do or cause to be done an illegal act or a legal act by
illegal means. In Nigeria, the laws on conspiracy are Section 516-518 of the Criminal Code and
Section 96 – 97 of the Penal Code.

Ingredients of conspiracy are

1) There must be at least two or more persons. See Sule v State (2009) 17 N.W.L.R. (pt
1169 ) 33 at 63 paragraph E-F
2) The parties i.e two or more persons must have reached an agreement. See Aduku v F.R.N
(2009) 9 N.W.L.R (pt. 1146) 370 at 398 paragraphs A-B
3) The agreement reached must be to commit an unlawful or criminal act. See Omotola v
State (2009) 7 N.W.L.R (PT 1139) 148
4) The conspirators must have agreed to do a lawful act by unlawful means. See R v
Brailsford (1905) 2 K.B 730

In order to sustain a charge of conspiracy, the prosecution is required to establish credible

evidence of the listed above.

Punishment for conspiracy ( S 516-517 CC)

If the conspiracy amounts to a felony, the accused person will be liable to imprisonment for
seven years, if the conspiracy amount to misdemeanor, the maximum punishment is two
years imprisonment.