Homicide

The dictionary defined homicide as the killing of a human being by another human being. 1 Sir
Edward Coke in his position asserted it is only a human being that can be a victim of murder.2

The law offers penalties to only unlawful and unjustified killing of a person. Because there are a
lots of defences available for an accused to avail himself from the wrath of the law.3

In State V Agu,4 Section 245 was noted as having 2 parts, the first dealing with the act, the
second dealing with the result/consequence of an unwilled act. The second part of Section 24
should thus apply to homicide because it deals with the result of the act.

Chapter 27 of the Criminal Code dealing with homicide and infanticide.

Section 306: Provides that it is unlawful to kill a person unless such killing is authorized,
justified or excused. Because there are a host of defence that can exculpate a person for killing
another.

Homicide may be lawful of unlawful.

Lawful Homicide

Non-felonious or unlawful homicide includes justifiable and Excusable homicide

Justifiable homicide – Homicide is justifiable where the killing is done under such
circumstances that no guilt is attached to it another. This may occur in the
following ways:

(i) In the execution of public justice. It is lawful for a person who is charged
by law with the duty of executing or a giving effect to the lawful
sentence of a court (including a native tribunal) to execute or give effect to
that sentence6
(ii) In the advancement of public justice

“When a peace officer or a police officer is proceeding lawfully to arrest, with or

without warrant, a person for an offence, which is a felony, and the offence is such
that the offender may be arrested without warrant, and the person sought to be
arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or
1
Wordweb dictionary online: https://www.wordwebonline.com/search.pl?w=HOMICIDE
2
(Coke’s Institutes, 3 Co Inst 47).
3
See Chapter 5 of the Criminal Code
4
No. 14-06-00816-CR
5
Of the Criminal Code
6
Criminal Code section 254
police officer and for any person lawfully assisting him, to use such force as may be
reasonably necessary to prevent the escape of the person sought to be arrested and if
the offence is such that the offender may be punished with death or with
imprisonment for seven years or more, may kill him if he cannot by any means
otherwise be arrested.7
Suppression of riot

It is lawful for any person to use or order to be used such force as he/she believes, on
reasonable grounds to be necessary in order to suppress a riot. The force used or applied
must be reasonably proportioned to the danger which he believes, on reasonable
grounds, is to be apprehended from its continuance.
Self Defence

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful
for him to use such force on the assailant as is reasonably necessary to make
effectual defence against the assault, provided that the force used is not intended,
and is not such as is likely, to cause death or grievous harm.
In preventing the commission of a forcible and atrocious crime:

If the nature of the assault is such as to cause reasonable apprehension of death or

grievous harm, and the person using force by way of defence believes, on reasonable
grounds, that he cannot otherwise preserve the person defended from death or grievous
harm, it is lawful for him to use any such force to the assailant as, is necessary for
defence, even though such force may cause death or grievous harm. (Criminal Code
section 286).

Unlawful Homicide 

The Criminal Code provides that:

Any person who unlawfully kills another is guilty of an offence which is called
murder or manslaughter, according to the circumstances of the case.8

Murder

7
Criminal Code section 27
8
Section 315
Section 3169 goes further to tell us the circumstances where a person that kills is said to commit
murder.

 If the offender intends to cause death or grievous bodily harm.

 Prosecution of an unlawful purpose which is likely to harm or endanger life.
 Intention to cause harm in order to facilitate the commission of an offence.
 Administering things or stopping breath for the purposes mentioned above

It is also immaterial if the offender claims that he did not intend to cause harm in carrying out an
unlawful purpose that is likely to endanger life. Section 316 of the Criminal Code.

“Unlawfully kills” note that if a person can breathe without a machine he is still alive. If he is
brain dead and being supported by a machine, the decision to remove the machine is not murder.
Re a conjoined twins (just passing) the case was decided on the basis of necessity.

There is a rebuttable presumption that one intends the probable consequence of his act. Hyam V
dpp. Adejumola V  the state. The defendant threw a burning stone at the deceased, he claimed
not to have intended to cause grievous bodily harm on the defendant.

Sub 2 deals with grievous bodily harm. It has been defined in Section 2 of the Criminal Code.
As in this case, merely intending grievous bodily harm might make you liable. Especially where
the intention is specific intention.

Attempted Murder

Manslaughter

Section 31710 provides that a person who kills a person in such circumstances as not to constitute
murder is guilty of manslaughter. This may be seen to provide for involuntary manslaughter. In
law negligence is of a higher degree. As such the courts would only be willing to construe
manslaughter rather than accident in gross negligence cases. Umaagwu V the state.

Section 31811 provides for the defence of provocation: Where someone does an act that can
constitute murder but it is done in the heat of passion caused by grave and sudden provocation
and before there is time for passion to cool. He is then guilty of manslaughter only. This can be
9
Of the criminal code

10
Criminal Code

11
ibid
seen as the voluntary manslaughter. The accidental killing of a person is referred to as
involuntary manslaughter while voluntary manslaughter is death caused as a result of
provocation.

In R V Adekanmi: A rural man and a farmer killed his wife for calling him impotent and
claiming that she was sleeping with other men. The court took into consideration, his
circumstances and held that such was enough to amount to provocation.

However in Layiwola V R, a civil servant who killed on a similar basis of such provocation was
held culpable because the court looked at his educational background and experience.

In Nungu V R: A younger brother said to his brother during a quarrel that he had provided the
money for his brother’s wedding. The court held that it did not amount to provocation. See
Nworie Nwali V  the state.

In R V  Martyr: The accused dealt the deceased several blows. The deceased fell and died of
brain hemorrhage. The court found him guilty of manslaughter rather than murder.

Section 319 provides that the sentence for murder is death. But someone below 17 and a
pregnant woman cannot be given such sentence.

Anyone who attempts to kill another can be liable to life imprisonment.12

Voluntary manslaughter

Involuntary manslaughter

In voluntary manslaughter means: an unlawful killing in which death is

unintentionally caused. Unlawful killing of another without any intention to kill or do
grievous bodily harm, but that is committed with criminal negligence or during the
commission of a crime not within the felony – murder range.

The terms “involuntary manslaughter’ and “negligence manslaughter’ is used

sometimes interchangeably.

Perkins and Bryce have described ‘involuntary manslaughter as a ‘catch all’

concept, covering all manslaughter not characterized as ‘voluntary’

12
Section 320
Some jurists maintain that it can also be due to any unlawful and dangerous action
causing death.

Thus, as unlawful killing without murderous malice, involuntary

manslaughter may be caused as follows:

 By an unlawful act, not involving an obvious risk of some bodily harm eg

criminal abortion, excessive chastisement of a child.
 B is a guest who would not go. ‘A’ kicks him out, which kick result in B’s
death. R v.Wild kicking B is an unlawful act with no intention to kill or
cause bodily harm,
 By the failure to perform some legal duty, such failure involving an obvious
risk of some bodily harm e.g neglect to provide food or other necessaries for
a child or infirm person .
Thus a In R v. Bonnyman, A doctor whose wife died in consequence of
omission to treat her is responsible for killing her, should she die.

Course of doing a lawful act with wicked negligence. A man drives a motor car
recklessly and thereby kills a pedestrian. Or Another pointing a firearm at someone
in guest, with utter recklessness. See Andrew v. DPP.

Causation

The provision of the Criminal Code13 is that anyone who causes the death of another is
considered to have killed that person.

This is termed Causation under law.

In an attempt to construe causation, we try to link the result with the act.

In R V Nwaoke14: The accused pointed a juju at the deceased who was indebted to him and
threatened. The deceased later fell depressed and hanged herself. She died, the West African
Court of Appeal held quashed his conviction and held that there was no evidence to show that
the particular juju resulted in the person killing herself. Also holding that the belief in juju is
unreasonable.

The Criminal Code15: Where a child dies as a consequence of the act or omission of another
before or during his birth, that person is deemed to have killed the child. But the child must have
first proceeded completely.
13
Section 308
14
(1939) Vol 5 WACA
15
Section 309
The Criminal Code provides that: A person who by threats, intimidation or deceit causes another
to do an act or omission which results in his death, is deemed to have killed the other person.16

The courts should ask if the act of the deceased was reasonable or daft. Was it a reasonably
forseeable consequence?17

A person who does an act or makes an omission which hastens the death of another who is
laboring under some disorder at the time is deemed to have killed that person.18

This seems to buttress the egg shell skull principle. 19 As the law aims at reducing the level of
violence. No one should hasten the death of another.

Umoru V the State20: In this case, the deceased, a lawyer had just returned from the way keep of
a colleague and parked his car. A man who spoke Hausa complained about where he parked the
car. Someone that had been sitting with the Hausa man slapped the lawyer. The slap caused the
lawyer to fall and hit his head on the hard floor. He became unconscious and died later. Upon
appeal the court held that although the act of slapping was intentional, the accused did not intend
the result. And such protection is afforded by the second part of Section 24 of the Criminal Code.

In R V Martyr:21 The accused inflicted several blows on the deceased who slumped and died of
brain hemorrhage. He was convicted of manslaughter rather than murder.

Section 312 of the Criminal Code. Provides that: The accused cannot plead that the deceased
would have survived but for his negligence. He cannot blame the victim for not taking due care.
This provision shall take cognizance of the circumstances of the case and the intervening acts.

R V Jordan: While the deceased was being treated for the injury caused by the plaintiff, he
drank water which gave him pneumonia. It was held that the result was too remote from the act
of the accused. R V  Brook. You should not say your victim was negligent in treating himself.
Just don’t accelerate the death of another and don’t find a reason to blame the victim for not
taking due care.

Smith V  R 1959 2 qb 45. The accused argued that there was undue care given to the deceased in
healing and health services for the wound resulting from his act. It was held that the act of the
accused remained the substantial cause of the deceased’s death.

16
Section 310
17
R V Nwaoke
18
Section 311 of the Criminal Code
19
Plaue V  ham 1975 61 CAR 271
20
(2006) JELR 46620 (CA)
21
R v Martyr [1962] Qd. R 398 at 417
Section 313 of the Criminal Code. Provides that: If death results from medical treatment of the
injury caused by the accused conduct on the deceased, it shall be no defence for the accused
except the treatment was grossly negligent and unreasonable and was not applied in good faith.-
R V Steel.

Section 314 of the Criminal Code. Provides that: Death must take place within a year and a day
of the cause of the death. (The last unlawful act occurring which contributed to the death).
Meaning that where mr A does something which makes Mr B hospitalized, if Mr B dies after 366
days from the act, Mr A is nevertheless exculpated because the death did not take place within a
year and a day.

Burden and Standard of Proof

The Evidence Act provides that: “If the prosecution proves the commission of a crime beyond
reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”22

There are two types of burden of proof namely:

(1) Legal burden of proof;

(2) Evidential burden which is the duty or obligation to give evidence and

The constitutional provision that an accused is presumed innocent until proven guilty does not sit
on the fence of legal proof as it is not the accused duty to persuade the court neither is he under
any obligation to adduce evidence on a particular fact or issue Fidelis Nwadialo, in his book 23
had this to say;

“The term ‘Burden of proof’ is used in two different senses. In the first sense, it means the
burden or obligation to establish a case. This is the obligation which lies on a party to persuade
the court either by preponderance of evidence, or beyond reasonable doubt that the material
facts which constitute his whole case are true, and consequently to have the case established and
judgment given in his favour... The other meaning of the expression ‘burden of proof’ is
the obligation to adduce evidence on a particular fact or issue. This evidence in some cases,
must be sufficient to prove the fact or issue, while in others, all that is required is for it to be
enough to justify a finding on that fact or issue, in favour of the party on whom the burden lies. It
is called ‘the evidential burden’. This is the sense in which the expression is more generally
used.” (Emphasis by me)

22
Section 135(3)
23
Fidelis Nwadialo,( 1999) Modern Nigerian Law of Evidence, University of Lagos Press, Lagos, p. 379. 
Thus, from the above author’s definition, burden of proof has two sides to it; identifying to
whom lies the burden and evidence “to whom lies the burden” has to adduce to support his or her
claim.

Legal Burden

The legal burden is the duty of a party to prove its case in accordance with the standard
prescribed by law. The legal burden is generally on the prosecution (subject to certain
exceptions). This means that where the defendant pleads not guilty, the prosecution have the
burden of proving all the elements of the offence (eg the identity of the defendant, the nature of
the act, the existence of any necessary knowledge or intent and negating of any defences which
are in issue). It includes proving negative elements of an offence, (eg lack of consent in a rape or
assault case). It is for the jury or magistrates to determine whether the burden has been
discharged.

Evidential Burden

The evidential burden is the obligation of a party to lead, introduce or provide evidence to prove
a fact in issue. Evidential burden or "production burden"24 is the obligation to produce evidence
to properly raise an issue at trial. Failure to satisfy the evidential burden means that an issue
cannot be raised at a court of law. Evidential burden has been described as the obligation "to
show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence
or non-existence of a fact in issue, due regard being had to the standard of proof demanded of
the party under such obligation".25

Lord Bingham said that evidential burden is not a burden of proof, but rather a burden of raising
an issue as to the matter in question fit for consideration by the tribunal of fact. In the criminal
law context, if an issue is properly raised, it is for the prosecutor to prove, beyond reasonable
doubt, that that issue does not avail the defendant.26 The evidential burden is on the party who
asserts, hence, the rule is that he who asserts must prove.

24
Barron's Law Dictionary, p. 56 (2nd ed. 1984).
25
Tapper, Collin (2010). Cross & Tapper on Evidence (11 ed.). Oxford University Press. p. 132.
26
Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264, [2005] 1 All ER 237, [2004] 3 WLR 976 (14 October
2004), House of Lords