DEPARTMENT OF PUBLIC LAW

FACULTY OF LAW
UNIVERSITY OF LAGOS
PUL 301, CRIMINAL LAW I
2019/2020 SESSION, 1ST SEMESTER
(REVISED CALENDAR)
LECTURE MATERIALS FOR WEEK 2(1)

TOPIC: HOMICIDE.

A. INTRODUCTION

Homicide is the killing of human being by another person and it can either be
lawful or unlawful. The issue of when a person’s life ends for the purpose of
homicide is very important. Is it when a person’s heartbeat or pulse stops? Is
it when a person is in a hopeless state but merely kept alive by an apparatus of
a kind? The current medical position is that the test is that of brain stem death
which can be diagnosed with certainty. Hence, a person must be medically
dead before a charge relating to homicide can be established against his
assailant.
When does life begin? Since the charge for homicide is predicated on the
death of a living being, it is pertinent to interrogate when life begins for the
purpose of homicide. Section 307 of the Criminal Code provides. “A child
becomes a person capable of being killed when it has completely proceeded
in a living state from the body of its mother, whether it has breathed or not
and whether it has an independent circulation or not and whether the navel
string is severed or not” See also Section 212 of the Criminal Law of Lagos
State. See State v. Linus Akpan (1972) 2 UILR (pt.4) 457. Also, See R v.
Reeves (1839) 9 C&P. 25.
It is against the above backdrop that abortion, especially in Nigeria, does not
constitute homicide. Black’s Law Dictionary defines life as the interval
between birth and death. However, scholars like Glanville Williams, have

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stated that the foetus has human life to be protected by the criminal law from
the moment when the ovum is fertilized. See also AG’s Reference case (No.
3, 1994) 1998 A.C 245 where the House of Lords held on appeal that foetus is
not a human being.

Lawful homicide are killings that are authorized, justified or excused by law.
See also Section 306 of the Criminal Code. See also Section 213 of the
Criminal Law of Lagos State. Instances of lawful homicide include killing in
self defence (S.286 C.C & S 193 CLLS) or defence of property (S.289 & 292
CC & SS. 196 & 197 CLLS). Thus, is it permissible to cause death or bodily
harm to someone in order to defend oneself or another person from unlawful
violence provided that the person causing the harm or death did what is
necessary to avoid the violence, especially, by retreating where possible. This
is otherwise described as private defence in section 60 Penal Code. See also
Section 32 (3) CC and S.33 (2) CFRN 1999. Note however, that in the
English case of R v. Mcinnes (1971) 3 AER, 295, the requirement of retreat
has been jettisoned Note also that for killing in defence of property to be
justified, the trespasser must first be requested to leave and it is only after
resistance that the attack can take place. In Baridon v. The State (1994) 1
SCNJ 12-13 the Supreme court held that the defence of self raised in an
appropriate case, is a complete answer to a charge of murder.

Lawful homicide can also arise in effecting a lawful arrest (Ss. 179 CLLS) or
executing the process of a court of competent jurisdiction (S. 32(2) CC & S.
178 CLLS). Also homicide committed during the course of preventing a felon
from escaping is lawful (S. 186 CLLS). Homicide can also be justified where
a law officer or police acts to suppress riot, insurrection or muting or to
prevent a breach of peace, provided the unreasonable or excessive force is not
used. There is also homicide resulting from sporting activities like wrestling,
soccer, boxing etc provided that neither of the parties had intention to kill.
Lawful homicide can also arise from deaths resulting from disciplinary or
corrective measures of the children, i.e (child or ward) See. S. 295 C.C. Note
that Section 24 CC also excuses homicide resulting from accident. Thus, in

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 Aliu Bello & 13 Ors v. A.G. Oyo State (1986) 5NWLR (pt 45) 826 @ 860,
Karibi – Whyte Jsc stated that:
“An accident as a result of an unwilled act mean an event without the fault of
the person alleged to have caused it”. Importantly, it must also be noted that
killings in the execution of a sentence of death penalty is a justified homicide.
See S. 254 CC, S. 33 (2) CFRN 1999 and S. 175 CLLS 2011.

Unlawful homicide include murder (Ss 315 & 316), Manslaughter Ss 317 &
318, suicide related offences (Ss 326 & 327 CC) and infanticide. (S. 327(a)
C.C). Whilst aiding and abetting suicide under the Criminal Code attracts the
punishment of life imprisonment, attempt to commit suicide attracts one year
imprisonment. Under the Criminal Law of Lagos State 2011, attempt to
commit suicide is no longer punishable. See S. 233 CLLS. The section
provides for hospitalization order. It is necessary to note however that suicide
per se, is not a punishable offence.

Infanticide is a crime by a mother against her baby who is below 12 months.

It is punishable with life imprisonment. See R v. Chima (1944) 10 WACA
223. It is instructive to state at this juncture that we shall only elaborate on the
offences of murder and manslaughter.

B. MURDER
The actus reus of offence of murder is defined in S. 315 CC as when a person,
unlawfully kills another but the mens rea is contained in S. 316 CC and it
includes six intentions viz:
i) If the offender intends to cause the death of the person killed or that
of another or
ii) If the offender intends to do to the person killed or to some other
person, some grievous harm. (Note that the definition of grievous
harm is contained in S.1. C.C). or
iii) If death is caused by an act done in the prosecution of an unlawful
purpose which is capable of endangering human life.

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 iv) If the offender intends to do grievous harm to somebody for the
purpose of facilitating the commission of an offence which is such
that the offender may be arrested without warrant. or
v) If death is caused by administering stupefying or overpowering
things for the purposes aforesaid. or
vi) If death is caused by willfully stopping the breath of any person.
Note the immaterialities i.e (i) In the 2nd case, it is immaterial that the offender
did not intend to hurt the particular person who is killed (ii) In the 3rd case, it
is immaterial that the offender did not intend to hurt any person (iii) In the last
three cases, it is immaterial that the offender did not intend to cause death or
did not know that death was likely to result. Note that murder is described as
culpable homicide under the Penal Code. See section 220 PC. Culpable
homicide not punishable with death is manslaughter under the C.C. See also
S.221 PC.

ESTABLISHMENT OF A MURDER CHARGE

There are 3 stages viz: The fact of death and the cause of death, the causal
link between the act or omission of the accused person with the deceased’s
death and the presence of mens rea on the part of the accused person.

(i) Fact of death and cause of death.

Death can be established by medical report issued by a medical practitioner

certifying that the deceased actually died. Medical certificate of death usually
contain cause of death both primary and secondary causes. The fact of death
may also be proved either by direct evidence or by circumstantial evidence.
See Azu v. The State (1993) 6 NWLR (pt.299) 303. It may be by direct
confessional statement, evidence of eye witness or production of the corpse.
However, in Ogundipe v. The State (1991) 3NWLR (pt.181) 519, where the
deceased was not seen to be alive again after the attack, nor the corpse, the
appeal against conviction was dismissed by the appellate court. See also
Princewill v. The State (1994) 6 NWLR (pt.353) 703. Thus, in Adeboye
Amusa v. The State (2003) 1SCNJ 518 where a vehicle left its way and hit
somebody, who died instantly, the court held that the cause of the death was

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already known despite the fact that there was no autopsy report. Also where
the confessional statement of the accused person describes how the crime was
perpetrated and goes further to state the motive for the crime, medical
evidence would not be required. See Bubakarin Homman v. The State (1967)
NMLR 23.

Inasmuch as medical evidence is necessary in establishing the cause of death

as stated in Mamman & Ors v. The State (1976) NSCC 303, there are plethora
of authorities to the effect that it is not mandatory in every situations, as
circumstantial evidence may suffice in certain instances. Thus, in Jua v. State
(2010) 4 NWLR (pt. 1184) 217 @ 222, the court held that an accused person
can be convicted of the offence of culpable homicide punishable with death if
there exists cogent and compelling circumstantial evidence to the fact that the
accused person killed the victim.

(ii) That the accused caused the death of the victim:

It must be established by the prosecution that the act of the accused person
directly or indirectly caused the death of the deceased (causation) S. 300 C.C.
Inasmuch as the act of the accused does not need to be the sole cause, it must
be a substantial cause of the deceased’s death. See R v. Dear (1996) CLR 596.
Thus where the accused act is a negligible cause, the charge of murder will
fail. In the case of Mamman Bande v. The State, (1972) NSCC 611 where
there was evidence that the accused inflicted injuries on the deceased but the
evidence was not conclusive that the injuries on the deceased caused the
death, the accused was convicted of causing grievous hurt.
Death may be caused by direct or indirect means and it can be caused either
by the assailant’s act or omission. Thus, S.211 of the Criminal Law Code of
Lagos State 2011 provides that any person who causes the death of another,
directly or indirectly by any means whatsoever is deemed to have killed that
other person. Hence, death could be caused by poisoning, drowning, burning,
starvation, strangulation or asphyxiation. See Usman Margan v. The State
(2010) 16 NWLR (pt.1220) 439. The prosecution must prove not only that the

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conduct of the accused could have caused the death of the deceased, but that it
actually caused the death. See R v. Oledima (1940) 6 WACA 202.
It must be noted that chain of causation can be broken in any of the following
instances and as such the liability of the accused for murder shall abate. These
instances are:
a) A year and a Day Rule:
Under the Common Law and the Criminal Code, a person is deemed to
have killed another if death takes place within a year and a day of the act
or omission that caused the victim’s death. Note that such period is
reckoned to be inclusive of the day on which the last unlawful act that
contributed to the cause of death was done, inclusive of the day on
which the last omission ceased. See S. 314 C.C.
A year and a Day Rule is a relic of antiquity when medical science was
so rudimentary. The purport is that if there is substantial lapse of time
between the injury and the death the person who has injured another
should not remain indefinitely at the risk of prosecution for murder and
that it would be unsafe to pronounce on whether the defendant’s conduct
or some other events caused the death. Consequently, if death does not
occur within a year and a day from the date of the injury, the death will
be attributed to another cause. It is to be noted that the Criminal Code
still retains a year and a day requirement while Criminal Law Code of
Lagos State has jettisoned it. The “a year and a day rule” was also
abolished in England by Section 1 of the Murder (Abolition of A Year
and a Day Rule) Act 1996. In Eric Uyo v. A.G Bendel State (1986) 1
NWLR (pt. 17) 418 @ 429, where the death of the deceased occurred
from the act of the appellant within one year and a day, it was held that
the presumption that the accused caused the death was applicable. It is
submitted that the year and a day rule is not only antiquated but also
anachronistic and as such should be jettisoned. As at today, under the
Criminal Code, if death occurs after a year and a day from the injury
inflicted, the chain of causation is broken. However, with modern
medical and technological advancement life support facilities are now

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 available to lengthen and save human lives. It has been contended that
the rule will merely allow accused persons to escape liability for
homicides that were glaringly committed.
b) Novus actus interveniens: Chain of causation will be broken where there
is an intervening development that set in to make the Defendant’s act not
to be the main cause of death. In R v. Jordan (1956) 40 CAR 152 where
the accused stabbed the deceased but there was evidence that the death
of the victim was as a result of poor medical treatment given to him
which resulted in broncho pneumonia when his wound was almost
getting healed, it was held that the chain is broken. However, S. 313 C.C
contemplates situations where there are proper medical attentions and
makes the defendant liable even if there is evidence of death by surgical
complications. The chain remains unbroken provided the treatment was
reasonably proper and done in good faith. However, in R v. Smith (1959)
2 All ER 193 where the accused stabbed the victim and the victim
dropped twice on his way while being taken to the hospital and was
given bad treatment on admission which affected his chance of recovery
and he died, it was held that the act of the accused was the operating and
substantial cause of the death. Also, in R v. Holland, (1957) Crim. LR
707, where the accused caused the injury to the victim’s finger which,
having not been properly handled, turned to lock jaw infection, it was
held that the chain was not broken. It is curious, whether the facts of the
above two cases are in tandem with the spirit of S. 313 C.C which
contemplates proper medical attention as a pre-condition.
c) Acceleration of Death: S.311 CC makes any person who hastens the
death of another through act or omission while the victim is already
labouring under some disorder or disease arising from another cause
which might have killed the victim but for the accelerating intervention
of the Defendants act/omission. See Uyo v. AG Bendel State (1986) 1
NWLR (pt. 17) 418.
d) Aggravation of wound: Where the accused occasions an act or omission,
to compound in one way or the other and the deceased died as a result of

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 such aggravation, the accused shall not be absolved from liability due to
the intervening and supervening event. In R v. Wall (1802) 28 State Tr.
51, the Governor of a colony sentenced a soldier to illegal flogging, the
soldier became ill but the illness was getting aggravated by his alcoholic
consumption. He was told not drink alcohol pending his recovery but he
persisted and died. The court held that the chain was not broken.
e) Causing Death by Threat: A person who after applying threat or
intimidation to another, causes that other to embark on an act or
omission which led to his death is liable for killing him. S.310 C.C. In R
v. Hayward (1980) 21 COX criminal case 692, there was an altercation
between the accused and his deceased wife upon which he threatened to
deal with her. The deceased took to the street out of fright and the
accused pursued her. Shortly thereafter, she fell down and died. Medical
evidence revealed that she died as a result of a defective gland which
could cause death as a result of fright. The court applied the Egg shell
theory (i.e. Take your victim as you find him,) and found the accused
guilty. The court held that it was unnecessary to prove actual physical
violence or knowledge of the wife’s condition.
f) Refusal of Medical Treatment:
Chain of causation is not broken where a victim refuses medical
treatment. It is immaterial whether the refusal is based on any religious
or occultic belief. If the refusal to take medication made the victim to
die, the accused is liable for his death. In R v. Blaue (1975) 3 AER 440.
“A” stabbed the victim, who was a member of Jehovah, witness sect and
who refused blood transfusion preparatory to a surgery, because of her
faith. Medical evidence revealed that she could have lived if she had
accepted the transfusion. She died as a result of bleeding resultant of the
stab. The court held that the chain of causation was not broken.

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Mental Element of Murder (Mens rea)
Section 316 (1) – (6) enumerate the various intentions which the Defendant
must formulate to be culpable for murder. This is in line with the maxim
Actus non facit reum nisi mens sit rea. The prosecution must prove guilty
intention. However, it may be very difficult to establish the intention of an
accused person.
It is difficult to prove a man’s intention. In most cases, it is inferred from the
nature of the act. In the case of murder, it can be actual or direct or it can be
inferred or indirect. It is actual where the accused set to kill the deceased and
in the process, the accused killed the victim or another.
Intention to kill can however be inferred where the circumstances of the case
disclosed or indicated that the accused intended to kill the deceased or any
other person or to cause grievous bodily injury. In forming an inference for
the intention in murder, Bamgbose has suggested that the following are
relevant parameters: (i) Weapon used. There is a distinction between using a
cane on a person and a shovel or sharp axe. In Igago v. State (1999) 12 SCNJ
140 where the appellant hit the deceased’s head with shovel and he died on
the third day, the court held that the use of lethal objects and dangerous
weapons may lead to the inference that the accused intended to kill or cause
grievous bodily harm (ii) Part of the body struck.
In Aga v. The State (1976) 7 SC. 173, the accused kicked a five month old
pregnant woman in the abdomen and she died. It was held that it can be
inferred that he intended to cause grievous bodily harm. See also Titus Anom
v. The State (1972) 12 SC. 56-59 where the accused used the butt of a gun to
hit the deceased on the chest, the court held that intention to cause grievous
harm can be inferred (iii) Degree of force used: Intention to kill or cause
grievous bodily harm can be inferred from the application of hard force. See
Kim v. The State (1992) 4 NWLR (pt. 233) 17. (iv) Quantity of drug or type
administered.
In Osadiaye v. The State (1977) 4 FSC 105, the court held that putting 3
tablets of madras in deceased’s drink was not likely to endanger human life.
The prosecution must be able to prove that the accused person formed an

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intention to do any of the acts or omissions contained in S.316 (1) – (6) of the
Criminal Code.
ANALYSIS OF S. 316 1-6.
Under S. 316 (1) & (2), murder is committed when there is proof that the
accused intends to kill or cause grievous bodily harm to a person or another,
and death occurs. Having earlier discussed proof of intention to kill, it is
necessary to examine the purport of the phrase “grievous harm”. S.1 of the
C.C defines it as any harm which amounts to maim, dangerous harm or
seriously or permanently injures or extends to permanent disfigurement etc.
Note that the intention to kill or cause grievous harm need not be formed for
the person actually killed. See Garki v. State (1979) LRNN 38 and Basoyin v.
A.G WN (1966) NMLR 287. Note also that in the case of Julius Abifiron v.
The State (2013) 13 NWLR (pt.1372) 619 the Supreme Court stated that in
addition to the requirement of intention to kill or cause grievous bodily harm,
the prosecution must also prove that the accused person had knowledge that
death or grievous bodily harm was the probable consequence of his act or
omission. Note that intention to kill is different from intention to cause
grievous harm and the prosecution must establish the specific intent. Thus, in
Oladipupo v. The State (1993) 6 NWLR (pt. 298) 131, the Supreme court held
that the appellant, who threw a plier at the deceased during an altercation
between them, could not be properly convicted for murder because the lower
court did not make a specific finding that he intended to cause grievous harm
to the deceased. See also Festus Amayo v. The State (2002) 5 WRN (SC), 115.
On S.316(3), two elements must be established viz (i) That the act of the
accused was done in the prosecution of unlawful purpose (ii) That the act of
the accused is likely to endanger human life. The two elements are separate
and must be distinguished from each other. Thus, in R v. Nameri (1951) 20
NLR 16, the court held that rape of a 13year old girl was not capable of
endangering a human’s life. The court admitted that the death resulting from
the rape is a death resulting from the prosecution of unlawful purpose.
However, in DPP v. Beard (1920) AC 479, also a rape case, where the
accused held the throat of the victim while the rape was taking place and the

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deceased died, it was held that the two requirements are met. Note that this
case is also applicable to S.316(6). In R v. Okoni (1938) 4 WACA 19, where
the accused set fire on a house with an intention to drive out a man who was
believed to be hiding there and a woman got burnt in the process, the court
held that it qualifies for murder under S.316(3). See also the abortion and
obnoxious liquid case of R v. Gould (1960) QDR 283 and the Nigerian cases
of Akinkunmi & Ors v. The State (1987) 1 NWLR (pt. 52) 608 and Sowemimo
& Ors v. The State (2004) 7 MJSC 183.
On S. 316 (4), it has to do with a death that ensues from grievous harm
inflicted in the process of facilitating the commisson of an offence. In R v.
Akanyi (1955) 15 WACA 84, where the accused went to rob and when
accosted by the deceased who tried to stop him, he inflicted grievous harm on
him in order to escape and death results, the court held it to constitute murder
under S. 316 (4) of the C.C. See also Digbehin & Ors v. The Queen (1963) 1
ANLR 388.
On S.316 (5) – Here murder is committed where death is caused by
administering any stupefying or overpowering substance on a person for the
purpose of facilitating the commission of an offence. An example is
administration of rophynol on a deceased to facilitate her non resistance
during rape. See Osadiaye v. The State (1977) (Supra) 105.
On S. 316 (6), Murder is committed where death is caused by willfully
stopping the breath of any person for the purpose of facilitating the
commission of an offence or for the purpose of facilitating the flight of an
offender who has committed or attempted to commit any such offence. In
D.PP v. Beard (1920) AC 479, where the accused held the throat of the victim
to facilitate the commission of the offence of rape on her, it was, it was held
that it satisfies the requirement of murder under S. 316 (6). 319 (1) CC..
It must be noted that the offence of murder is punishable with death penalty.
See S. 319 (1) C.C.

ATTEMPTED MURDER.

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 S.320 CC provides that any person who (i) attempts unlawfully to kill or (ii)
with intent unlawfully of killing another, does any act, or omits to do any act
which it is his duty to do such act or omission being of a nature to endanger
human life, such person is liable to life imprisonment. The general principles
of attempt are applicable to attempted murder. The actus reus for attempted
murder is doing any act of such nature as to be likely to endanger human life.
These includes: firing a loaded gun as in the case of The State v. Eric Ofole
(1972) 2 ECSLR (pt.2) 524. Importantly, unlike a murder charge in which
proof of intention to cause grievous harm would suffice for liability, such is
not sufficient to ground a conviction for attempted murder. Rather, the
prosecution must prove that the accused person actually intended to kill. In
Cyril Ozuloke v. The State (1965) NMLR 125, the Supreme Court, in allowing
the appeal, held that the prosecution failed to prove intention to kill. Thus,
where the intention to kill was not established but only intention to do
grievous bodily harm, the offence committed is not attempted murder but
wounding with intent. In the words of Lord Goddard LCJ in R v. George
Whybrow (1951) 35 Cr. App. R 141 146, “it may be said that the law which is
not always logical, is somewhat illogical in saying that if one attacks a person,
intending to do grievous bodily harm and death results, that is murder but if
he attacks a person and only intends to do grievous bodily harm and death
does not result, it is not attempted murder but wounding with intent to do
grievous bodily harm”. Attempted murder is punishable with life
imprisonment.

C. MANSLAUGHTER
Any unlawful killing which does not amount to murder is manslaughter See
S.317 C.C. Manslaughter can be voluntary or involuntary. See also Ss 188 &
189 of CLLS 2011 and S. 222 P.C. See R v. Prentice (1994) QB 302.
Voluntary manslaughter arises where the accused kills a person with the
requisite mens rea but the offence is reduced from murder to manslaughter
because of provocation or diminished responsibility. However, involuntary
manslaughter occurs where the person who killed did not intend to kill and

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did not foresee that death is a probable consequence of his conduct. Cases of
gross negligence in the course of doing a lawful or unlawful act or
recklessness are examples of involuntary manslaughter. Use of excessive
force in self defence can also come up as a specie of manslaughter. See Apugo
v. The State (2006) 15 NWLR (pt.1002) 227.

DEFENCE OF PROVOCATION
It is a mitigation plea for diminished responsibility and it is contained in
S.318 C.C. The section provides that if a person kills another in the heat of
passion, caused by grave (Lagos only) and sudden provocation and before
there is time for the passion to cool (contemporaneity), then he is guilty of
manslaughter. However, provocation was only defined in S.283 C.C in
relation to an offence of which an assault is an element. Note that in Obaji v.
State (1965) 1 All NLR 269, the Supreme court held that Sections 283 and
318 of the C.C must be read together for a complete meaning and purport of
provocation, especially as it relates to murder.
It suffices to state here that the ingredients of the definition in S.283 includes
the doing of wrongful act or insult, which is done to an ordinary person or in
the presence of0 an ordinary person to another person, who is under his
immediate care, or whom he stands in a conjugal, parental, filial or fraternal
relationship or in cases of master and servant relationship, to deprive him of
power of self control which results in the act of assault to the offeror of the
provocation.
Under the English law however, the defence historically developed with the
Common law at a time when the carrying of weapon was routine and when, as
a consequence, the potential for fatalities which arose from altercation was
high. The defence then allowed the strictness of the murder laws (i.e
mandatory death penalty) to be avoided. A classic contemporary definition of
provocation was proffered by Devlin J. in R v. Duffy (1949) 1 ALL E.R 932
where he said “provocation is some act or series of acts, done by the dead
man to the accused which could cause in any reasonable person, and actually
causes in the accused, a sudden and temporary loss of self control, rendering

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the accused subject to passion to make him or her for the moment not to be a
master of his mind” it would be seen from the foregoing English position that
the Nigerian provision in S.283 is wider because it accommodates an insult
which can be by words or killing which arose from the provocative acts
directed to a 3rd party who shares a relationship with the accused. Secondly,
though Duffy’s definition refers to acts or series of acts, judicial authorities in
England and Nigeria acknowledge that within certain context, words can
qualify as provocation.
The Supreme Court of Nigeria adopted Black’s Law definition of provocation
in Gambo Musa v. The State (2009) vol. 7 (pt.1) MJSC 52. Thus, Black’s Law
Dictionary’s definition is more detailed than Duffy’s and it accommodates
that words can amount to provocation. Note than mere anger can not ground
provocation. See Nkenchor v. The State (1985) 1 NSCC 621.
ELEMENTS OF PROVOCATION DEFENCE
The accused bear a lot of evidential burden in establishing the defence of
provocation. Section 284 of the C.C provides:
“A person is not criminally responsible for an assault committed upon a
person who gives him provocation for the assault, if he is in fact deprived by
the provocation of the power of self control and acts upon it on the sudden
(sic) and before there is time for his passion to cool, provided that the force
used is not disproportionate to the provocation and is not intended and is not
such as likely to cause death or grievous harm. Whether any particular act or
insult is such as to be likely to deprive an ordinary person of the power of self
control and to induce him to assault the person by whom the act or insult is
done or offered, and whether in any particular case, the person provoked was
actually deprived by the provocation of the power of self control and whether
any force used is or is not disproportionate to the provocation, are questions
of fact”

In the case of James Biruwa v. The State (1992) 1 SCNJ 121, the Supreme
court in affirming the conviction of the lower courts stated the conditions for
a valid plea of provocation defence thus: (i) That the act of the deceased must

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be grave and the reaction of the accused must be sudden, (ii) That there is loss
of self control and (iii) That the retaliation is proportionate to the provocation.
Hence, for provocation defence to succeed, there must have been some acts or
series of acts by the deceased directed at the accused which could cause in a
reasonable person, and actually did cause the accused, a sudden and
temporary loss of self control, rendering him so subject to person as to make
him for the moment not master of his mind. See also Nwafor Uraku v. The
State (1976) NSCC 369 on the requirement that the three elements must occur
contemporaneously. Hence they are to be construed conjunctively and not
disjunctively.

However, in the later case of Nwokearu v. The State (2010) 15 NWLR

I.(C.A), the court held that for the defence of provocation to succeed, the facts
which defence should be able to establish are the following: (i) That the act
relied on was obviously provocative (ii) That the provocative act came from
the deceased (iii) That the sudden fight or assault between the accused and the
deceased was instantaneous and continuous with no time for passion to cool
down (iv) That the provocative act deprived the accused of self control and
(v) That the force used by the accused in repelling the provocation was
proportional in the circumstances.

On the requirement that the act/words/gesture relied on must be provocative,

See Ihuebeka v. The State (2000) FWLR 1832 where the accused killed his
wife and his father on the ground that they ridiculed him because he had no
money, the Supreme Court held that the acts/words relied upon were not
obviously provocative. On the requirement that the provocative act must have
come from the deceased, it must be noted that provocation by one person does
not avail an attack on another person. See Amako v. The State (2000) 4 SCNJ
93. However, if the provocative act flows from a group, the attack can be
unleashed on another member of the group. However, S.283 C.C permits that
provocation defence can avail a third party if he shares conjugal or filial
relationship with the offeree of the provocative act/words. It also extends to
where there is a relationship of master and servant between the accused and

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the offeree of the provocative act. Note that this position contrasts with what
obtains at common law where it was required that the provocative act/words
must have been directed to the accused person. It is essential however that the
deceased must be present during the assault. However, by virtue of the
Homicide Act in England, the act or insult can now be directed to a near
relative. See R v. Pearson (1992) CL Rep. 193. On provocation offered by a
member of a group, See R v. Ekpo (1938) 4 WACA 10. See also Biruwa v. The
State (supra) on the requirement that the provocative acts/words must have
attracted a sudden and spontaneous attack which must be continuous without
time for passion to cool down. The assault here, must not only be sudden, the
provocative act must also be grave. The term “sudden” connotes absence of
premeditation. An act of premeditation is inconsistent with provocation: The
Supreme court held in Uwaekweghinya v. The State (2005) ALL FWLR
(pt.1259) 1911 that premeditated intent is incompatible with the defence of
provocation such than an accused person who kills another with malice afore
thought cannot be said to have acted suddenly. Note also that vengeance
negatives the plea of provocation. See Chukwu v. The State (1966) NMLR 81
Provocation recognizes basic human instinct such that the act held out as a
natural and justifiable reaction of the provoked person was not done in self
revenge but in ventilation of a natural, sudden and contemporaneous feeling
of anger caused by the circumstances of the occasion. Hence, an accused
person must indicate the defence of provocation as early as possible when
writing his statement with the police. See Ifendo v. The State (1967) NMLR
200. The term “grave” on the other hand connotes the seriousness, intensity or
the magnitude of the insult. Mere annoyance or anger will therefore not be
construed as being grave to ground provocation defence. Thus while knocking
the daughter of the accused down was held to be grave in Akpan v. The State
(1990) 7 NWLR (pt.160) 101, a mere insult on a night watchman by students
was held not to be grave in Okonji v. The State (1987) 1 NWLR 52. Note also
that in the case of Nwambe v. The State (1995) 3 SCNJ 77, it was held that
refusal to buy appellant wine constituted act of annoyance, not provocation.

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Aside from the gravity of the provocative acts/words the accused reaction
must also be spontaneous. It must be grave and the provocative act must be
sudden in heat of passion and spontaneous before the heat cools down. In R v.
Green (1955) 15 WACA 73 A wife receives advances from Y and stays with
mother. The husband got there and saw the wife and Y having intercourse at
9.00pm. He went home and came back by 1.00am with machete with the
intention of killing Y but ended up killing his wife because the place was
dark. The defence of provocation failed because the heat of passion has
cooled down. However, there can be cumulative series of incidents which the
court in England has recognized as “continuous provocation”. Hence, if the
conduct of the deceased was relatively not provocative if taken in isolation,
the defence of provocation may be open to the accused if it was part of or was
the last in a series of acts which finally provoked a sudden loss of self control
by the accused and so precipitated his lethal reaction which led to the death of
the deceased. Thus, in Oladiran v. The State (1986)1 NSCC 62, the defence of
cumulative provocation was rejected by the Supreme Court but the Supreme
Court emphasised the subjective test in construing the provocative tendencies
of words especially. The court said words may amount to provocation but that
it must relate to the station in life of the accused person. The court said further
that in backward communities where the subjection of women is accepted as
natural and proper, taunting by wife such as calling the husband impotent and
spitting on his face may arouse more passion than in more sophisticated
societies. The court held that the word uttered to the accused being an
administrative secretary in Ibadan (sophisticated society) could not justify the
stabbing by a person in his station in life.
On the requirement of loss of self control:
The test here is objective and subjective in that the provocative acts/words
must not only have induced the accused to lose control, it must be capable of
making a reasonable man temporarily to lose his mind. It is not a statistical
test to determine what a majority of people would do because the greater
majority of people do not react to provocation by killing. The test is whether
the conduct of the accused person can be understood sympathetically, albeit

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not condoned. Hence, the loss of control must be situated within the context
of the accused person. The reasonable man of the accused background or
stature in life, as a sophisticated person, would be judged differently from a
person from a primitive, less educated and less refined person. The test of a
reasonable man, therefore, relate to a person having the power of self control
to be expected of an ordinary person of the sex and age of the accused. It must
be established that the accused person actually lost his self control. Hence, if a
reasonable man would lose self control but the accused did not, then the
defence would fail. See R v. Adekanmi 1944 17 NLR 99, See also R v. Igiri
(1948) 12 WACA 377. In Ruma v. Daura Native Authority (1960) 5 FSC 93
where a woman likened a moslem to a dog, it was held by the Federal
Supreme Court that it may amount to provocation. However, if the parties are
non moslems, it may not lead to provocation.
In Bedder v. DPP (1954) 2 ALL NLR 809, the accused who was sexually
impotent and who tried unsuccessfully to have intercourse with a prostitute
was held guilty of murder when the prostitute jeered at him and kicked him.
The court failed to adopt the standard of a reasonable impotent man. The
misnomer in Bedder’s case was corrected by the court of Appeal in the case
of DPP v. Camplin (1978) 2 ALL ER 168 where the law lords directed that
the decision in Bedder should be jettisoned. In Camplin, the Defendant, a
15year old boy was raped by a man and the man taunted him about it, leading
to the Defendant beating him to death. It was held that the defence of
provocation availed the Defendant.

On the requirement of proportionality:

The requirement of proportionality is contained in S.284 C.C. It is required
that the degree of retaliation must be commensurate with the provocation
offered. Proportionality requirement, in essence, is the art of balancing the
provocative acts/words with the reaction or deed of the accused person. In
George v. The State (1993) 6 SCNJ (pt.11) 249, the Supreme court held that
the beating of the accused and the scattering of his beddings were not such
acts which would cause, in an ordinary man of the same standing as the

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accused, a sudden and temporary loss of self control rendering him subject to
passion, as to make him, for the moment, not master of his mind. The
machete blow to the head of the deceased was held to be disproportionate to
the provocation offered. In considering the proportion of response, the courts
took into cognizance the instrument with which the homicide was effected.
See Nwanbe v. The State (supra) @ 93. See also Lado v. The State (1999) 6
SCNJ. 1 @ p.9.
The requirement of proportionality has been criticized in Philips v. R (1969) 2
AC 130 where the counsel to the accused raised the poser whether once a
reasonable man had lost self control, his actions can still be expected to be
that of a reasonable man and should be fully responsible in law, for whatever
he did. Note also that in R v. Adelodun (1959) 21 NLR 76, the accused who
was provoked by abusive songs against his family after the loss of L.G
Council election by his cousin, lost self control and killed one of the singers
with a machete cut. Autopsy revealed that the severe cuts killed the deceased.
The court held that provocation defence failed proportionality test.
Note that voluntary manslaughter can also arise from defence of diminished
responsibility. See S. 226 CLLS 2011.

INVOLUNTARY MANSLAUGHTER
This can arise in any of the following circumstances:
a) Where the accused caused death in circumstances that he did not
intend to kill nor cause grievous bodily harm.
b) In circumstances that he did not foresee death as a probable
consequence of his conduct but there is blameworthiness such as
gross negligence, or recklessness e.g. medical profession, reckless
driving etc.
c) Where death results from unlawful act which involves the risk of
harm to another.
On death resulting from the performance of dangerous or illegal act, See A.G
(WN) v. Oyelade (1966) NMLR 407 where the accused, a native Doctor was
invited to treat the deceased of his swollen scrotum. The accused pricked the

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swollen scrotum with a needle, squeezing out some liquid after which he gave
him some liquid to drink. The deceased later died of injuries to his testis and
scrotum. He was convicted of manslaughter.

On automobile Manslaughter, see R v. Layiwola (1960) WNLR 77 where the

accused drove fast in a zig-zag manner along a road in a built up area in the
night when pedestrians and other vehicles were moving and overran the
deceased. It was held that his conduct showed complete criminal disregard for
the lives and safety of others. He was thereafter convicted of manslaughter.
Also in Amusa v. The State (2003) 1 SCNJ 518, the appellant drove a taxi cab
and left his lane, swerved to the right side where his car knocked down a
pedestrian who died instantly. The Supreme Court affirmed his conviction for
manslaughter. The case of R v. Kojo (1958) LLR 69, had to do with driving
with defective steering and bad brakes.

On medical negligence, see Adomako v. R (1995) 1 AC 171 where an

anaesthetist failed to notice the disconnection of a tube from the ventilator
that was connected to the patient’s body and death results. He was held guilty
of manslaughter. See also R v. Akerele (1941) 7 WACA 56 and State v.
Okechukwu (1965) 9 ENLR 91.

REFERENCES
a) Books
1. Okonkwo & Naish, Criminal Law in Nigeria 2nd Ed. Sweet &
Maxwell ltd. 1980.
2. O. Bamgbose & S. Akinbiyi, Criminal Law in Nigeria. Evans
Publishers, 2015.
3. Eso O. Onoja, Fundamental Principles of Nigerian Criminal Law,
Greenworld Publishers, 2015.
4. Smith & Hogan, Criminal Law, Oxford University Press 2005.
5. A. Reed & B. Fitzpatrick, Criminal Law, Sweet & Maxwell 4th Ed.,
2009.

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 LIST OF CASES ON HOMICIDE

A. MURDER.
1. A.G Reference Case (No. 3, 1994) (1998) A.C 245.
2. Adeboye Amusa v. The State (2003) 1 SCNJ 578.
3. Aga v. The State (1976) 7 SC 173
4. Akinkunmi & Ors v. The State (1987) 1 NWLR (pt.52) 608.
5. Aliu Bello & Ors v. AG. Oyo State (196 86) 5 NWLR (pt.45) 826.
6. Azu v. State (1993) 6 NWLR (pt.299) 303.
7. Baridon v. The State (1994) 1 SCNJ
8. Basoyin v. A.G WN (1966) NMLR 287.
9. Cyril Ozuloke v. The State (1965) NMLR 125.
10. Digbehin & Ors v. The Queen (1963) 1 ANLR 388
11. Dpp v. Beard (1920) AC. 479.
12. Eric Uyo v. A.G Bendel State (1986) 1 NWLR (pt.17) 418
13. Festus Amayo v. The State (2002) 5 WRN (SC) 115.
14. Garki v. The State (1979) LRNN 38.
15. Igago v. State (1999) 12 SCNJ 140
16. Jua v. State (2010) 4 NWLR (pt.1184) 217.
17. Julius Abifiron v. The State (2013) 13 NWLR (pt.1372) 619.
18. Kim v. The State (1992) 4 NWLR (pt.233) 17.
19. Mamman & Ors v. The State (1976) NSCC 303.
20. Mamman Bande v. The State (1972) NSCC 611.
21. Ogundipe v. The State (1991) 3 NWLR (pt.181) 579.
22. Oladipupo v. The State (1993) 6 NWLR (pt.298) 131.
23. Osadiaye v. The State (1977) 4 FSC 105.
24. Princewill v. The State (1994) 6 NWLR (pt.353) 703.
25. R v. Akanyi (1955) 15 WACA 84
26. R v. Blaue (1975) 3 AER 440.
27. R v. Chima (1944) 10 WACA 223.

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 28. R v. Dear (1996) CLR 596
29. R v. George Whybrow (1951) 35 Cr. App. R. 141.
30. R v. Gould (1960) QDR 283.
31. R v. Hayward (1980) 21 COX C.C 692.
32. R v. Holland (1957) Crim L.R 707
33. R v. Jordan (1956) 40 CAR 152
34. R v. Mcinnes (1971) 3 AER 295.
35. R v. Nameri (1951) 20 NLR 16.
36. R v. Okoni (1938) 4 WACA 19.
37. R v. Oledima (1940) 6 WACA 202.
38. R v. Reeves (1839) 9 C&P. 25
39. R v. Smith (1959) 2 All ER 193
40. R v. Wall (1802) 28 State Tr. 51.
41. Sowemimo & Ors v. The State (2004) 7 MJSC 183
42. State v. Eric Ofole (1972) 2 ECSLR (pt.2) 524.
43. State v. Linus Akpan (1972) 2 UILR (pt. 4) 457.
44. Titus Anom v. The State (1972) 12 Sc 56
45. Usman Maigari v. The State (2010) 16 NWLR (pt.1220) 439.
46. Uyo v. A.G Bendel State (1986) 1 NWLR (pt.17) 418.

B. MANSLAUGHTER

1. Adomako v. R (1995) 1 AC 171

2. AG (WN) v. Oyelade (1966) NMLR 407
3. Akpan v. The State (1990) 7 NWLR (pt.160) 101.
4. Amako v. The State (2000), 4 SCNJ 93
5. Amusa v. The State (2003) 1 SCNJ 518
6. Apujo v. The State (2006) 15 NWLR (pt.1002) 227.
7. Bedder v. Dpp (1954) 2 All NLR 809
8. Chukwu v. The State (1966) NMLR 81
9. Dpp v. Camplin (1978) 1 All ER 168

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10. Gambo Musa v. The State (2009) vol. 7 (pt.1) MJSC 52
11. George v. The State (1993) 6 SCNJ (pt.11) 249.
12. Ifendo v. The State (1967) NMLR 200
13. Ihuebeka v. The State (2000) FWLR 1832
14. James Biruwa v. The State (1992) 1 SCNJ 121
15. Lado v. The State (1999) 6 SCNJ 1.
16. Nkenchor v. The State (1985) 1 NSCC 621
17. Nwafor Uraka v. The State (1976) NSCC 369
18. Nwambe v. The State (1995) 3 SCNJ 77
19. Nwokearu v. The State 2010 15 NWLR 1. (C.A)
20. Obaji v. The State (1965) 1 All NLR 269
21. Okonji v. The State (1987) 1 NWLR 52
22. Oladiran v. The State (1986) 1 NSCC 62
23. Philips v. R (1969) 2 AC 130.
24. R v. Adekanmi (1944) 17 NLR 99.|
25. R v. Adelodun (1959) 21 NLR 76
26. R v. Akerele (1941) 7 WACA 56
27. R v. Duffy (1949) 1 All ER 932
28. R v. Ekpo (1938) 4 WACA 10.
29. R v. Green (1955) 15 WACA 73.
30. R v. Igiri (1948) 12 WACA 377
31. R v. Kojo (1958) LLR 69.
32. R v. Layiwola (1960) WNLR 77
33. R v. Pearson (1992) CL Rep 193
34. R v. Prentice (1994) QB 302
35. Ruma v. Daura Native Authority (1960) 5 FSC 93
36. State v. Okechukwu (1965) 9 ENLR 91.
37. Uwaekweghinya v. The State (2005) All FWLR (pt.1259) 1911.

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