Breeze Reporters

Examination Of Judicial Attitude To Homicide In Nigeria, By Oseni Rasaq .A


This Article contains the origin and meaning of punishment, punishment which can be defined as a penalty laid down by the law to the disobedience of the law. The origin of punishment has existed from time immemorial, the role of punishment is very important in Criminal Law simply because the law seeks that no one trespasses on the right of another.

How effective over the years has the laws put in place to curb the heinous crime of homicide and how it has been enforced. Also how the Nigerian Courts handle homicide cases in general.


Punishment can be defined as ‘any fine, penalty or confinement inflicted upon a person by the authority of the law and the judgement and sentence of a court, for some crime or offence committed by him, or for his omission of a duty enjoined by law. A deprivative of property or some right, but does not include a civil penalty redounding to the benefit of an individual, such as forfeiture of interest’.  

There are basic assumptions about the word punishment; the first of these assumptions is in terms of pains, deprivation of suffering of the person on whom the punishment is administered. Punishment has been seen to involve the deliberate infliction of pain as been imposed by law; the second assumption is that punishment is only a response to the violation of law, if this assumption is accepted, then a further assumption which is in fact the third, is that the idea of punishment is to create an atmosphere for non-violation that is strict obedience to the law. Such an atmosphere could be in the form of retribution, deterrence, prevention, reformation, e.t.c.

The origin of death penalty could be traced back to ancient regimes. The principle of ‘an eye for an eye’. The practise then was kill a killer regardless of the circumstances that led to the offence, this principle was applied in the strictest sense.

The most gruesome and torturous forms of execution were invented under the religious auspices in Europe. The existing Criminal Law in 18th century in Europe was repressive and barbaric, moreover, punishment was cruel and unusual, executions were designed to prolong the agony of death. Islamic Law allows death penalty only ‘for a just cause’ otherwise the taking of life against fellow creatures is forbidden, and this is similar to the Christian commandment of ‘thou shall not kill’. The ‘just cause’ in Islam is in judicial punishment or self defence. However, Islam and Christianity as much as possible discourage private vengeance and retaliation.     

In Nigeria, the origin of death penalty is as old as the existence of cultures in the various communities. For instance in traditional Igbo communities where a person or inadvertenly killed another, the penalty required by custom was for him to take his own life, which in itself is suicide. In addition, the house and properties of the offender could be burnt or destroyed.

This ritual was required by custom, and it was not extraordinary. In the same vein, where a person without haven taken another’s life commits suicide, his actions become abominable, thereby attracting penalty to his corpse, people would even decline to bury his body.

It is pertinent to note that reactions towards the death penalty vary from one traditional Nigerian community to the other.

Under the Nigerian Criminal Law punishment is always fixed by law creating the offence, for instance Section 96 of the Penal Code provides thus: ‘When two or more persons agree to do or cause to be done’

  1. an illegal act; or
  2. an act which is not illegal, by illegal means such an agreement is called a Criminal Conspiracy.

From the above provision we can say that where these offences have been proved, the offender will be liable for the sentences of death or imprisonment.

The forms of punishment under the Penal Code ranges from payment of an amount of fine to death penalty. Section 68(2)147 provides thus;

145Punishments specified in subsection(1) be liable to the punishment of Haddi lashing as prescribed by Moslem Law for offences contrary to section 387,388,392,393,401,402,403 and 404 of the Penal Code.

It is pertinent to note that both the Penal Code and Criminal Code provide for the maximum punishment, where it prescribes the death penalty for an offence, the convicting Court is left to decide the adequate punishment within the range prescribed by law.   


The effectiveness of homicide Laws in Nigeria is invariably connected to its enforcement. Therefore, there is need to peruse some pertinent questions which are faced by the Nigerian Courts in enforcing these Laws, vis-a-vis some problems which convicted accused may likely face.

One problem faced by the court is the hardship of wrong interpretation of both the

Penal Code and the Criminal Code. For instance, in R v Bangaza, the Federal Supreme Court had to interpret Section 319(2) of the Criminal Code which provides thus:

‘Where an offender who in the opinion of the court has not attained the age of seventeen years has been found guilty of murder, such offender shall not be sentenced to death but shall be ordered to be detained.’

In trying to interpret the above provision, the court decided that the relevant age at the time of the conviction and not the age at the time of commissioning of the offence. Accordingly, where the offender under that provision was under the age of 17 years when he committed the offence, he must be sentenced to death unless the verdict was given before he attained the age of 17years.

In the case of R v Evans. The case raised a political storm in the Parliament and the Home Secretary was forced by weight of public opinion to set up an enquiry into the case and to grant a posthumous pardon to Evans. In this case, Evans was arrested and prosecuted; he was subsequently found guilty of the infanticide of his daughter and sentenced to death. Some months after the execution by hanging of Evans, it was found that he was not guilty of the offence charged against him and a posthumous pardon was granted to Evans.

If in England, with her centuries of jury trial and policy of justice which is near perfect that such a pitiable thing has happened, then one can imagine the indescribable responsibility thrust on Judges, Magistrate and indeed any person or body of persons who have the burden of pronouncing the guilt or innocence of any one accused of an offence.



Punishment is an important aspect of law, since for every Criminal Law there is a punishment attached to it. It is defined as the infliction of pain or suffering or deprivation of something valuable in relation to someone who has committed a crime.

Punishment is the hallmark of all Criminal Proceedings and it could be asserted that punishment is what Criminal Law is about. Punishment under the Nigerian Criminal Law is always fixed by the law creating the offence.

Generally, with respect to the offences of homicide, penalties often imposed by the Courts are death sentences (Section 319 of the Criminal Code, where the Court finds the accused guilty of murder or culpable homicide punishable with death being a capital offence) and imprisonment for life, where the Court finds that the degree of the offence is lesser than murder, which is manslaughter.


The judicial position of Nigerian courts in reaching decisions on homicide cases and in the interpretation of the statutory provisions on homicide vis-a-vis the Penal Code and the Criminal Code is an aspect of this study.

Sections 220,221 and 222 of the Penal Code and Sections 316,317 and 320 of the

Criminal Code generally govern cases of unlawful homicide and attempted murder. Therefore, a perusal of some judicial decision which are reflective of the

interpretation and application of these statutory provisions is essential.

In the case of State v Usman, the provisions of Sections 221 and 222 of the Penal Code were considered. The respondent herein was charged under Section 221(a) of the Penal Code for the offence of culpable homicide punishable with death for killing his wife, AminatuBabawuro.

The PW1, one AbubakarBakari who was the houseboy of the respondent testified that one Saturday night in the month of May 1970, he heard the deceased wife of the respondent crying, the crying later stopped. The respondent later called him, when he came into the parlour of the respondent’s house; he saw the lifeless body of the deceased lying in a pool of blood. The respondent asked him to carry the corpse into a grave already dug by the respondent. The PW1 was later warned by the respondent not to tell any inquirer that he killed his wife. Sometimes later, the corpse was subsequently exhumed by a little dog belonging to the respondent.PW6 a medical doctor who performed a post mortem examination of the body of the deceased. In his opinion, death was caused by severe blood loss from injury on the neck which might have been caused by a sharp object.

For the defence, the respondent who was the witness denied the charge but said nothing about the testimonies of PW1 and PW6.

In his judgement, the trial Court found the respondent guilty of the offence of culpable homicide not punishable with death under Section 220(b) of the Penal Code and punishable under Section 224 of the Penal Code. It sentenced the respondent to 11years imprisonment.

The trial Court found however, the respondent did not come under any of the exceptions in Section 222 of the Penal Code dealing with culpable homicide not punishable with death. The Court pointed out that the prosecution could not prove that the respondent had the requisite mensrea because they failed to prove that the respondent knew that his activities would cause the death of the deceased. The trial Court also found the PW1’s evidence was not enough to prove that the respondent actually dug a grave in his compound preparatory to killing his wife.

Dissatisfied with the judgement of the trial High Court, the state appealed to the Court of Appeal, contending inter alia that it proved beyond reasonable doubt to entitle the state to get sentence of guilt as charged. The respondent cross-appealed.

In determining the matter, the Court of Appeal considered the statutory provisions in Sections 221 and 222 of the Penal Code.

Unanimously allowing the appeal and dismissing the cross appeal, the Court of Appeal held that in the instant case, the evidence of PW1 and PW6 provided adequately that the respondent actually intended the killing of the deceased. The respondent in the instant case did not come under any of the exceptions under section 222 of the Penal Code to make the trial Court return a verdict of guilt for culpable homicide not punishable with death instead of culpable homicide punishable with death as charged.

On proof of intention to commit crime, the intention of the respondent was manifested in cutting the neck of the deceased with a sharp object. In summary, the intention to kill or the mensrea of the killer was clearly proven by the prosecution. The Court is entitled to draw such inference from the evidence as it appears proper, taking into account the nature of the weapon used, the nature of injuries and whether or not the blows were inflicted on a vital part of the body of the deceased.

The appellant Court further stated that there is duty on the Courts to avoid speculation as to guilt in murder or homicide cases. An important position of the appellate Court may reverse the verdict of the trial Court. Although it is not the function of the Court of Appeal to retry cases based on the record of proceedings before it, yet it has a duty not to allow a verdict which is entirely unwarranted to stand.

In a lead judgement, the appeal was adjudged meritorious and accordingly it was allowed, while the cross appeal was dismissed.

In homicide cases, where the accused had been charged and sentenced for the crime of murder, the position of the Nigerian Court is to consider every defence available to the accused. This was highlighted in the case of Ibikunle v State. An accused in a murder charge is not restricted in the consideration of his defence. The Court must consider all defences raised by an accused in a trial no matter how stupid they may be. In the instant case, the appellant raised a defence of provocation, self defence and accident. However, all evidences preferred in support of the defences could not avail him as no defence can be found in them. The trial Court’s verdict of guilt on the appellant is unassailable.

Another pertinent question which is often asked is what is the judicial attitude to Courts to the Criminal responsibility of an accused under the age of minority in homicide cases?

This issue was considered in the case of Orisakwe v State. On the Criminal responsibility of a person of 14years; by virtue of section 30 of the Criminal Code of Eastern Nigeria, a person under the age of 7years is not Criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission, he had the capacity to know that he ought not to do the act or make the omission. And by virtue of Section 319 of the Criminal Code of Eastern Nigeria which deals with punishment for murder shall be sentenced to death. However, where the offender who in the opinion of the Court has not attained the age of 17years has been found of murder, such offender shall not be sentenced to death but shall be ordered to be detained, during the Governor’s pleasure. In the instant case, the provision of section 319 Criminal Code did not avail him.

In the case ofEdoho v State, the appellant committed murder contrary to section

319 (1), 318 27, 28 of Criminal Code. The appellant was arraigned before the High Court and charged with the offence of murder. The background facts of the case were the appellant, the deceased, PW1, PW2, and DW2 belong to the same family and they were all at the scene of the incident according to their testimony, the appellant took the walking stick of the deceased and in an effort to recover the walking stick, a fight broke out between them. After changing the initial shape, the appellant went further to plunge a dagger into the two; the head was buried in the chest of the deceased leaving only the stomp as remnant.

The medical officer in charge of the hospital where the deceased was admitted operated on the corpse to remove the head of the dagger. He issued a medical report about the condition of the deceased. The appellant blamed his reaction on being afflicted within sanity through witchcraft. The incident of attacking the deceased was beyond his control as he was then under the spell of the witchcraft and ultimately insanity.

At the hearing, the investigating police officer could not be produced in Court as a witness in the case, as he had retired from the police service.

At the conclusion of trial, the Court believed the case of the prosecution as the PW1 and PW2, who are members of the same family with the appellant and eye-witness of the incident, testified and they did not observe any abnormality in the appellant at the time he stabbed the deceased on 30/10/83, and that there was no history of insanity in their family. The trial Courts rejected the appellant’s plea of insanity and found him guilty of murder. He was convicted and sentenced to death by hanging.

The appellant was dissatisfied with the verdict of the trial Court and appealed to the Court of Appeal which affirmed the decision of the trial Court and dismissed the appellant’s appeal.

Still dissatisfied, the appellant appealed to Supreme Court which the appeal was unanimously dismissed on the grounds that the issue of witch craft as a cause of the appellant’s mental derangement and incapacity, without more, which in fact was not properly established, goes to no issue. It cannot be possibly adequate to the proper charge of the heinous murder, the appellant intentionally committed. There is and over whelming evidence that the time he committed he was inform control of his mental capacity to control his actions. He deliberately killed the deceased. His subsequent plea of insanity was but a mere flimsy after thought.

In the case of Nkebisi v State, there was a dispute among the members of UmuereagOsiokweAnaku community as to the ownership of one Ikpi fishpond. The dispute resolved and the fishpond was leased to one Chief Philip Ezeabu for five years.

The first accused at the trial Court was employed as a guard to watch over the pond. After a while, he was removed and replaced with the deceased. The first accused at the trial Court was not happy and threatened in the presence of many people in a meeting, that he would kill the deceased. The deceased subsequently disappeared and was never found. Godfrey Emengini (PW5) was the only eye witness of the killing of the deceased by the appellants. At the trial, he gave a graphic account of how the deceased was killed and the appellants arranged to dump the body in River Anambra. The accused persons even threatened him with death for fear that he might expose them. They ended up giving him an oath not to disclose what he saw. He subsequently got a native doctor to cure him of the oath before he disclosed the heinous murder of the deceased.

The appellants however denied the charge against them, the trial Court relied mainly on the evidence of PW5 to convict the appellants. The appellants appealed to the Court of Appeal which was dismissed still aggrieved, they appealed further to the

Supreme Court which unanimously dismissed the appeal.

The main issue in this appeal is whether the evidence of PW5, the blood relative of the deceased was properly accepted in evidence. In this appeal, both the learned trial judge and the Court of Appeal made reference to the evidence of PW5 as a relative of the deceased and came into conclusion that the appellant was rightly convicted. If a relative is the only eye witness to give circumstantial evidence to the murder, it will be naïve on the part of the law to discharge and acquit and accused person on that ground. This will amount to injustice on the part of the family of the deceased.  

Also in the case ofJua v State, the appellant was suspected of the case of a motorcycle. Police constable, Rotimi Jeremiah was detailed to take the appellant to Ipee in Kwara State to produce the particulars of the motorcycle; the said police constable was no longer seen alive since then. The appellant escaped to Ede in Osun State from Ipee.

The appellant was then arraigned with three others at the trial Court for the offence of culpable homicide of causing the death of the police constable Rotimi Jeremiah punishable under section 221 of Penal Code. During investigation, the appellant made oral and written confessions stating that he, together with other accused persons

(who died in the course of the trial) killed the deceased. The appellant led the police to the scene of the crime. There at, the clothing of the deceased on the fateful day, the teeth, and some strands of hair were recovered: but the corpse of the deceased was not seen.

At the trial, the appellant retracted his confessional statement and denied killing the deceased. The trial Court disbelieved him, convicted and sentenced him to death by hanging. He appealed to the Court of Appeal which dismissed the appeal and upheld the judgement of the trial Court. He then appealed to the Supreme Court arguing that the prosecution did not prove the case against him beyond reasonable doubt as required by section 138 of the Evidence Act. It was further contended by him that the absence of direct eye witness to the crime was fatal to the case of the prosecution.

He also argued that the corpse of the deceased was not found for a medical examination and therefore the doubt emanating there from enured to his benefit. Conclusively, the appellant argued that the circumstantial evidence adduced by the prosecution witnesses was not enough to convict him of the offence.

On the other hand, the respondents contended that the prosecution proved the case against the appellant beyond reasonable doubt and stated that beyond all shadow of doubt. The respondent argued that it is not in all cases that the absence of eye witness and the corpse of deceased in a murder charge will be fatal to the case of the prosecution.

It was further argued by the respondent that the circumstantial evidence adduced by the prosecution witness sufficiently fixed the crime in the appellant and that the retraction of his confessional statement was after thought which should be discountenanced.

The appeal was dismissed on the grounds that; by virtue of S ection 138 of the Evidence Act:

  1. If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
  2. The burden of proving that any person has been guilty of a crime or wrongful act is subject to the provisions of section 141 of this Act and the person who asserts it whether the commission of such act is or not directly in issue in the action.

The ingredients of the offence of culpable homicide under Section 221 of Penal Code are:

  1. That the deceased has died.
  2. That the death was caused by the appellant
  3. That the appellant had the intention of causing the death of the deceased or to cause him grievous bodily injury.  

From the above case, it can be deduced that the lower court, that is, trial Court was right in the sentence melted out to the accused.

By Oseni Rasaq .A


TEL:  08139276940, 09092164780


Staff Writer

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