In this case, the West African Court of Appeal held that the correct interpretation of the relevant 1933 legislation was that:

i. Where a native court tried an offence which was an offence only against native law and custom, then it could try it in accordance with native law and custom, and could inflict the customary penalty subject to the usual provisos.

ii. Where the offence tried was an offence under the code, then even though it might also be an offence, the only law to be applied was the law of the Code.

In the above case, however, by 1957, the position of the law was settled that the correct law was that native or customary courts were empowered to apply customary criminal law, even if there was a provision in the Criminal Code on the subject. But they must not pass a sentence in excess of the maximum that could have been imposed if the case had been tried under the Criminal Code.

In the above case, the decision of the court was that a belief in witchcraft is unreasonable, notwithstanding that the belief was, in fact, prevalent in that particular community. That is the position of the law -- the existence of witchcraft would not be countenanced by the court - and it does not matter that it would be dangerous to so hold in that area.

Generally, in interpretation of the law, a number of factors are taken into consideration -- public policy, culture, level of knowledge or education and the mythical 'reasonable man' on the street, etc. In this particular case the court held in a case where Mistake is presented as a defence, standard of education will be largely considered, But in a case of which the defence of Provocation is raised, the standard would be that of the mythical 'Reasonable man" in the street of the accused situation in life.

In the instant case with respect to self-defence, the law is that the reasonable man is not abnormally excitable, but he may be of smaller in physique.

In defence of manslaughter by negligent native doctors, the law is that an accused is judged by the reasonable qualified doctor.

On appeal against sentences imposed after a conviction for armed robbery and burglary, the Appeal Court, in the above case, increased the sentences of the two accused persons to 15 years and 12 years respectively instead of 10 years and 8 years imprisonment.

In the above case, A stole a cow. He was chased by the owner of the cow and he shot the owner of the cow. The court held that A's conviction of stealing and attempted murder was correct.

In the above case, the appellant, convicted of desition under sedition 330 of the Gold Coast Criminal Code, attempted to argue that the common law requirement of an intention to incite violence ought to be imported into the definition of sedition in that Code. The Privy Council, in rejecting this contention, held that though the Legislature of the colony might have defined "seditious words" by reference to such an intention, it was sufficient to say that they had not done so.

The prosecutor has a duty to prove all the elements of the offence charged as defined by law. Where it fails so to do, such alleged offence must fail. In the instant case, a conviction under section 249(d) of the Criminal Code was quashed because the prosecution failed to prove that the place where the alleged offence occurred was a public place, "where certain elements constitute an offence, they must be strictly proved". If a particular charge fails, the court has limited powers to substitute a conviction for a different offence.

Where a Criminal Code section is comprehensive and is obviously different from English law, the courts have not been slow to point out the difference.

In the case above, Verity, C.J. said of the law of insanity under the Code:

As to the wisdom of introducing or maintaining the departure from English law, it is for the Legislature to judge; this court can only apply the law as we find it.

In this case, the Supreme Court held that one of the burden of proof placed on the prosecution in an allegation of causing death by dangerous driving is that the accident occurred on a Federal High Way under sections 4 and 5(1) of the Federal Highways Act, 1971.

The courts have treated certain sections of the Code as if they were not comprehensive, thereby introducing the common law, without considering the implications of the Code sections.in relations to provocation in murder cases, it was assumed that the only relevant section was section 318 which needed supplementing by the common law, whereas there there was a strong case for arguing that section 283 of the Criminal Code defines provocation for the purpose of section 318.

In the instant case, the House of Lords held that the jury must acquit an accused person notwithstanding that they are satisfied that the accused person's story is not true, if they think it might reasonably be true. And that they should only convict if satisfied beyond reasonable doubt that it is true.

In the above case, the accused person, Mrs. Hyam, poured petrol through the letterbox of the house of her lover's mistress and then ignited it knowing people were asleep in the house. Her defence was lack of intention to kill, although, she admitted that she foresaw death or grievous bodily harm as a highly probable result of her actions. The House of Lords upheld her conviction, arguing that her state of mind amounted to an intention to kill or cause grievous bodily harm knowing that death or grievous bodily harm was a probable consequence of it, even though she did not desire that result.

A code intended to replace the common law and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code and then to see if the Code will bear an interpretation which leaves the law unaltered.

Deduction of intention to commit a crime by courts

...the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself and that decisions on the common law are only of value where the wording of the Code is obscure or capable of bearing more than one meaning, when they may be referred to for the purpose of ascertaining the sense in which words are used in the Code.

In this case, the accused and his stepfather drank heavily at a wedding anniversary of the appellant's maternal grandparents. The rest of the family retired at 1:00 a.m. but the accused and his stepfather remained and were heard laughing and talking in an apparently friendly way until nearly 4:00 a.m. when a shot rang out. The accused telephoned the police, saying, 'I have just murdered my father.' He stated that they had a disagreement as to who was quicker at loading and firing a shotgun. At the stepfather's request, he got two shotguns and cartridges. The accused was first to load. The stepfather said, "I didn't think you have got the guts, but if you have, pull the trigger.' The accused said, 'I didn't aim the gun. I just pulled the trigger and he was dead."

The direction to the jury was that the accused would have the necessary intention to kill or cause grievous bodily harm "when he foresees that it will probably happen, whether he desires it or not." The accused was convicted of murder and his appeal against conviction was dismissed by the Appeal Court. He appealed to the House of Lords. In determining what intention means, the House of Lords as per Lord Bridge of Harwich referred to the definition of intention in Archbold criminal Pleading Evidence, 1982 wherein intention is defined as:

"In law, a man intends the consequence of his voluntary act:

(i) When he desires it to happen, whether or not he foresees that it probably will happen and;

(ii) When he foresees that it will probably happen, whether he desires it or not..."

In the above case, the Law Lords had declared that there was an irrefutable presumption of law that a person foresaw and intended the "actual consequences" of his act.

In this case, the accused person killed his three months old son in a fit of anger by throwing him against a wall thereby fracturing the baby's skull. The accused did not deny the act, but he claimed it was not intended, but admitted that he had realized there was a risk of serious injury. The trial judge directed the jury that they might infer intention. If they are satisfied that the appellant appreciated that there was a substantial risk that he would cause serious harm. The Law Lords were however, in agreement with the model direction formulated by Lord Steyn for the trial judges where the accused intention is not clear thus:

Where the charge is murder... The jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D actions and that D appreciated that such was the case.

In this case, the decision of the court is that the commission of an intentional act with recklessness as to the consequences is enough to describe the consequences as intended.

The defect in the traditional analysis of intention, recklessness and negligence is that the whole scheme presuppose a mind which is continually working out what may happen in the future, and which gives orders to the body after it has worked out the future with sufficient clarity as was decided by the court in the above case.

In the instant case, D, in a telephone kiosk, being frustrated by his inability to get through, twice slammed the telephone down on to its cradle. On the second occasion, he smashed it. Charged with criminal damage, he said that he did not realize at the time he acted that he was likely to break the telephone. The Court of Appeal held that he was rightly convicted because 'a man is reckless when he carried out the deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless, continued the performance of that act.

The House of Lords in dismissing the appellant's appeal in the instant case, held that the use of the words "virtually certain" does not amount to a misdirection in so far as the dividing line between intention and recklessness is not blurred, once it was made clear that it was for the jury to infer that the accused had the intention needed to constitute the charge. The House of Lords further reasoned that the question of inferences is better drawn by the trial judges who have heard from the accused and may conclude that a substantial probability would follow the accused's action is enough for them to conclude that the accused whom they are trying foresaw and he intended the consequences. The jury was directed to consider that when he threw the child, there was no substantial risk that he would cause serious injury and the accused appreciated that fact. The jury was therefore directed to consider the accused state of mind to consider the matter subjectively and was not being directed to look at the question of risk objectively.

In the instant case, the appellant who was alleged to suffer from violent perverted sexual desires strangled a girl and thereafter mutilated her body. It was alleged that he found it difficult or impossible to control such a desire. He was described as a sexual psychopath. The direction given by the judge to the jury was to the effect that the difficulty or even an inability of an accused person to exercise will power to control his physical acts could not amount to such abnormality of mind as substantially impaired his mental responsibilities. On appeal, the appellant court in allowing the appeal, deemed it necessary to define "abnormality of mind."

(It is)... a state of mind so different from that of ordinary human beings that the reasonable man..., would term it abnormal it appear to us wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether the act was right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment.

In the instant case, the deceased engaged the appellant and one other person in a fight. The appellant was convicted of the murder of the deceased -- Ezekiel Olugbo in the High Court. The prosecution alleged that the appellant and one other person conspired and murdered the deceased by stabbing the deceased to death with a knife during a fight or struggle between them. The appellant did not deny that he fought with the deceased, but he stated that the deceased ran into the knife held by the appellant when the deceased tried to use the broken bottles he had held all along on the appellant. The Appeal Court affirmed the conviction of the appellant. On appeal against conviction, the Supreme Court set aside the judgments of the lower courts, discharged and acquitted the appellant. The Apex Court, per M.E. Ogundare, held:

Going through the statement made by the appellant to the Police Exhibit A and his evidence in court...his defence was one of accident... the learned trial judge completely misconceived the evidence before him and misdirected himself on number of issues. If he had properly directed himself on the evidence he would have accepted the version of the defence as to the sequence of the events that day and in consequence would have upheld the defence of accident put forward by the appellant...

In the above cases, however, the position of law is that the doctrine is not applicable where the kind of harm done is different from the kind of harm intended.

The presumption that a man intends the natural consequences of his act may be rebutted or negative by direct evidence. In this case, the accused aimed a blow at his brother with a heavily weighted axe, but turned away the cutting edge of the blade and stuck him only with the wooden haft. The brother died. The court accepted that the accused person may not have intended to kill. But it is still the offence of murder if it can be proved that the accused intended to cause some grievous harm, and in language indicating that they were concerned to discover the actual state of mind of the accused, the decision of the court was that the accused person must have intended the natural and probable consequence of his act -- grievous harm.

The deduction of intention must be from the facts of any particular situation. The law in this case, is that intention is not capable of positive proof, if can only be implied from overt acts.

In this case, Nedrick, having threatened to burn out a woman against whom he bore a grudge, poured paraffin through the letter box of her house and set it alight. The woman's child died in the fire. Nedrick was charged with murder. The direction given to the jury before the publication of the speeches in Moloney was based on the passage in Archbold which was disapproved in that case and was to the effect that the defendant was guilty of murder if he knew that it was highly probable that his act would result in serious bodily injury to somebody in the house. The Court of Appeal quashed the conviction and substituted a verdict of manslaughter.

The position of law in the above cases is that an intention to kill may be inferred from the severity with which a machete blow is struck, or an intention to prevent a document from being used as evidence from the deliberate and/or intentional destruction of the document.

A presumption that a man intends the natural consequence of his act is expressly enacted in the law of sedition. But in the instant case, the Federal Supreme Court had held that any such presumption from the nature of a seditious article can be rebutted by evidence of the accused's actual intention.

In the case above, the respondent did a work for the owner of a hotel as the result of which he had a quarrel with the owner. He got drunk and set fire to the hotel in revenge. The fire was discovered and put out before any serious damage was caused and none of the ten guests in the hotel at the time was injured. The respondent was indicted on two counts of arson under section 1(1) and (2) of the Criminal Damage Act 1971. The Respondent pleaded guilty to the lesser charge of intentionally or recklessly destroying or damaging property of another contrary to section 1(1) but pleaded not guilty to the more serious charge under section 1(2) of damaging property with intent to endanger life or being reckless whether life would be endangered.

The trial judge directed the jury that drunkenness was not a defence to a charge under section 1(2) and he was convicted. The Court of Appeal allowed his appeal. The Crown appealed to the House of Lords. In deciding whether drunkenness was a defence under section 1(2), the House considered it necessary to decide upon the precise meaning of the term, 'recklessness' as employed in section 1(2). The word used in the Malicious Damage Act 1861 which was replaced by the Criminal Damage Act 1971 is 'maliciously'.

. . . The House of Lords per Diplock, held that a person was reckless not only when he was aware of a risk of causing the harm in question, but also where he gave no thought to whether there was a risk or not, if the risk would have been obvious to any reasonable person who did give thought to it.

In the instant case, the court held that:

"A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless, continues in the performance of that act."

In this case, the respondent rode his motorcycle along an urban street posted with 30 meter per hour speed limit, at a period when there was good deal of other traffic using the street. The driver ran into and killed a pedestrian who was crossing the road from an off-licence shop to her car which was parked on the opposite of the street. The driver was charged on indictment charging him for causing her death by driving a motor-vehicle on the road recklessly, contrary to section 1 of the English Traffic Act 1972. The prosecution alleged that the driver drove the vehicle between 60 and 80 meter per hour, and probably much nearer to the latter. The defence claimed that the speed of the vehicle was no more than 30, or at most, 40 meter per hour and probably near to the former.

Lord Diplock who read the lead judgment (which Lords Fraser, Roskill and Bridge concurred with) cited sections 1 and 2 of the English Road Traffic Act 1972, as amended by section 50(1) of the Criminal Law Act 1977:

"1. A person who causes death of another by driving a motor vehicle on a road recklessly shall be guilty of an offence.

2. A person who drives a motor vehicle on a road recklessly shall be guilty of an offence."

. . . The House of Lords per Diplock, placing reliance on Caldwell's case, held that a person was reckless not only when he was aware of a risk of causing the harm in question, but also where he gave no thought to whether there was a risk or not, if the risk would have been obvious to any reasonable person who did give thought to it.

In the above case, the accused, 14 years old school girl, was in a remedial class in school. She had problem of sleeping that particular night. Being unable to sleep, she poured white spirit on the carpet of a garden shed and then throw two lighted matches on the spirit. The shed was destroyed by fire. She was charged with criminal damage contrary to section 1(1) of the English Criminal Damage Act 1971. The charge alleged that she was neglect whether the shed be destroyed. The justices held that because of her age; lack of understanding; lack of experience and exhaustion, the risk of destroying the shed would not have been obvious to her if she had given any thought to the matter. They found that she was not neglect and dismissed the information. The prosecution appealed by way of case stated.

The House of Lords, per Glidewell J, decided thus:

In the light of the (authorities, viz. Caldwell, Lawrence and Miller)..., we are in my judgment bound to hold that the word 'reckless' in section 1 of the Criminal Damage Act 1971 has the meaning ascribed to it by Mr. Moses...The questions posed by the case were:

'1. Whether properly directing themselves and upon a true construction of section 1(1) of the Criminal Damage Act 1971, the justices were correct in their interpretation of the meaning of the reckless, namely, that a defencant should only be able to have acted recklessly by virtue of his failure to give any thought to an ovvious risk that property would be destroyed or damaed, where such risk would have been obvious to him if he had given any thought to matter?

2. Whether properly directing themselves on the evidence the justices could properly have come to their decision that the defencant had acted neither intentionally nor recklessly in destroying by fire the shed and its contents.

In the above case, Lord Hewart C.J. stated the test for establishing 'criminal negligence' for manslaughter at common law, thus:

In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as 'culpable', 'criminal', 'wicked', 'clear', 'complete'. But, whatever epithet be used and whether an epithet be used or not in order to establish criminal liability, the facts must be such that, in the opinion of the jury, the negligence of the accused person went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

In this case, a post office clerk gave the keys of a cage containing parcels to his assistants, contrary to departmental instructions, and a parcel was lost. It was enough to uphold his conviction that he was aware of his duty to take care and was imprudent.

The position of law in the instant cases is that in case of manslaughter charges against native doctors, for instance, the standard which has been applied is that their skill must be measured against the skill of a reasonable qualified doctor.

In the instant case, an appeal was allowed from a conviction for publishing defamatory matter knowing it to be false, for there was no proof of such knowledge; the accused might well have believed his publication to be true.

In the instant case, the appellant company was charged with 'causing' or 'permitting' their lorry to be on the road and carry passenger without the lorry satisfying some sections of the Road Traffic Regulations. Hubbard J. construed the word 'permit' used in the section as one requiring mens rea to be proved.

In this case, the accused person was charged and convicted of the offence of making a false statement to a public officer, knowing the statement to be false. On appeal against conviction, it was argued on his behalf that there ought to have been positive proof of the knowledge of the accused or his belief. The appellate court held that unless the accused confesses to such knowledge, the issue as to what he knows or does not know, or what he believes or does not believe, is a matter within the accused peculiar knowledge which can only be proved by an inference from evidence which will justify such knowledge.

In this case, the court per Webber, J, held that even though both accused believe in all innocence that the second accused was entitled to take certain cases out of Customs, they were guilty of offences in respect of taking those cases away because the relevant sections of the Customs Ordinance were absolutely prohibitive.

The appellants in this case, struck a man with intent to kill the man. Believing the man to be dead, but the man was unconscious. They rolled the man over a cliff in order to make his death appear accidental. The man died from subsequent exposure. The defence argued that the intent to kill did not concur with an act causing death, and that the subsequent act which caused the death was not accompanied by an intent to kill, and that therefore in respect of the latter act, they should be guilty of a lesser offence of culpable homicide and not of murder. The Privy Council rejected the argument on the premise that the transaction could not be divided into this way.

The Rhodesian Federal Supreme Court in the above case explained that the principle applies only to situation where the disposal of the body formed one part of the single transaction to kill the victim and had been planned beforehand.

The law is that criminal proceedings against a public officer alleged to have committed an offence in the course of the execution of his duty must be instituted within 3 months of the alleged commission of the offence. Section 3(a) of the Public Officer Protection Act, (Cap. 168) Laws of the Federation, 1990. In the above case, the period of limitation begins to run from the date of the cause of action.

In the above case, the law is that the Public Officer Protection Act, (Cap. 168) Laws of the Federation, 1990 only protects public officers acting in execution of public duty and not an institution, office or public authority.

The Appeal Court in this case, held that a perpetrator of fraud by virtue of section 35(1) of the Action Law, 1981 of Anambra State is barred or estopped from taking advantage of the period of limitation.

In land matters in Lagos State, the law is that the limitation period to institute proceeding is twelve years.

The law in the above cases is that where the law provided for the institution of an action within prescribed period, proceedings will not be brought after the time prescribed by the statute, for any action that is commenced after the stipulated period is totally barred since the right of the injured person has been extinguished.

The law is that the plaintiff is the master of the proceedings. He can, if he so wishes, discontinue the suit. In the above case, the Appeal Court held that once a plaintiff withdraws his suit where the leave of the court is not required, the trial judge has no option but to strike out the suit.

In civil cases, the law on procedure is not strictly adhered to and, may in certain cases be waived, but not in criminal cases. In the instant case, it is suggested that in a civil case, the party's application for departure from the Rules if 'proper' before the court may order for its rules to be departed.

In the case above, the court held that:

...some crimes are punished as an affront to the moral feelings of the community although they cause no damage to the community as a whole. This is true of the group of crimes having in differing degrees as religious aspect; blasphemy; attempted suicide, abortion, bigamy. It is also largely true of obscenity and adult homosexuality. Even murder need not cause public damage; for example, when a mother kills her infant child. This creates no general sense of insecurity; the only material loss to society is the loss of the child, and whether that is economically a real loss or gain depends on whether the country is under or overpopulated at the time. Evidently, the social condemnation of infant-killing rest on non-utilitarian ethics. Some forms of public nuisance, too, are crimes although they positively benefit the community.

A civil action is initiated through filing a writ in the appropriate court. The Appeal Court in the instant case, held that the proper issue and service of a writ of summons on a defendant is a condition precedent to any effective adjudication between the parties to a case.

It is the law that the requirement of the law for the suit to proceed to hearing is that there must be personal service of the writ on the defendant. Where a defendant is served and there is proof of the service, the action can be mentioned in the defendant's absence. If the suit proceeds to trial, the defendant still did not appear, the matter can proceed up to the judgment stage.

In the above case, the Supreme Court held thus:

By virtue of section 210 of the Criminal Procedure Act, every accused person shall subject to the provisions of section 100 and sub-section 223, be present in court during trial, unless he misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable. The exceptions were listed as follows:

i. Under section 100 of the Criminal Procedure Act where the offence carries a fine of N100; or

ii. Under section 223(2) of the Criminal Procedure Act where the court is conducting investigation as to whether the accused is of unsound mind and, consequently incapable of making his defence; or

iii. Where the accused misconducts himself at the trial.

In the above case, the court, per Cave L.C. tried to establish a working test to distinguish between a criminal wrong and a civil wrong. The first test is that the offence must be against public law, and the second is that the charge must have been preferred before a court of judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence.

In this case, the issue for determination was whether the liability to pay a fine under section 89(1) of the Stamp Duties Ordinance was a civil or criminal liability. The action was begun by a criminal summons. The trial Magistrate dismissed the action holding that the liability was a civil one and that a criminal summons was not appropriate. On appeal by the Attorney General, Arms Ag. J, set aside the judgment and held that the section created an offence punishable on conviction by the imposition of a penalty.

In the above case, a Chief Magistrate made an order binding over the accused to be of good behavior for the ensuring twelve months. The accused appealed. Before hearing the substantive appeal, it became necessary for the court to determine whether the appeal is a civil appeal or a criminal appeal. If the appeal is a civil one, appeal would lay only by leave of the High Court or court below. In holding the appeal to be a criminal appeal, the court held:

The purpose of the Act is to make provision for the procedure to be followed in criminal cases in the High Court and Magistrate Courts, and it is reasonable to regard proceedings under part 4 as criminal proceedings for the purpose of section 117 of the Constitution.

In the above case, the Privy Council accepted as correct what has for long been a classic statement of the doctrine -- that of Wright J, in Sherras v. de Ruzzen

There is a presumption that mens rea, or evil intention or knowledge of the wrongfulness of the act, is an essential ingredient in every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence, or by the subject-matter with which it deals, and both must be considered.

In this case, the accused person was charged with wilfully delivering a letter to a person other than the person to whom it was address. The respondent asserted that it was enough, in establishing guilt, to show that the act of delivery was wilful, i.e. deliberate, but the West African Court of Appeal held that the word "wilfully" must govern the whole definition of the offence and that although, the accused was conscious of the act of delivery, he was not aware that he was delivering to the wrong person, and must therefore be acquitted.

In the instant case, the conviction of a man who apparently know that the girl in the case was under age but who did not know that she had a father, was quashed.

In this case however, the conviction of a man who took the girl knowingly out of the possession and against the will of her father, but who reasonably believed her to be over 16 was affirmed.

In the instant case, a reasonable belief that her first husband was dead when she married again, was a defence to the accused person against a charge of bigamy.

But in this case, a reasonable belief that he was divorced from his first wife when he married again, was not a defence to the accused against the same charge.

In the case above, a publican was held guilty of selling liquor to a person who was drunk, even though he did not know of the latter's condition.

In this case however, the conviction was quashed of a publican who sold liquor to a police constable on duty, because he reasonably believed the latter, who was in plain clothes, to be off duty.

In the instant case, a mortgagor of sheep had sold some of them without the written consent of the mortgagee, contrary to the provisions of a statute designed to protect mortgagees. In fact, the mortgagee had given his verbal consent and the mortgagor was acting in good faith, but the offence did not require proof of an intent to defraud and the mortgagor knew that he had no written. Therefore, there was mens rea and technically an offence.

In the instant case, a newspaper proprietor before leaving his premises instructed the man he left in charge not to publish the paper while he was away. The man disobeyed and published seditious article. The proprietor was acquitted of sedition because:

In publishing the paper, the servant was not acting as agent of the proprietor. Therefore, it cannot be said that the proprietor was publishing anything.

In this case, the word "wilfully" was said to govern the whole definition of the offence and thus to require knowledge of all the facts constituting it.

In this case, the accused persons intentionally published a report which was in fact false. No evidence was given to the effect that they knew it was false. Nevertheless, the court held that it was enough for conviction that they had made no attempt to ascertain whether the report was true or false.

In the above case, the appellant set fire to mattresses inside a carpenter's shed which contained some mattresses and furniture, and a part of the building was burnt. He was charged on two counts with "wilfully" setting fire to the building and wilfully damaging the mattresses. The court held that "wilfully" with regard to setting fire to the building means that the appellant's acts must have been done with the intention of setting the building on fire. It was not enough if the appellant merely intended to burn the mattresses.

In the instant case, a company was charged with permitting one of its Lorries to be used for carrying of passengers contrary to the Regulations. But they were acquitted because liability was held not to be strict.

In this case, a newspaper editor was found guilty of publishing a seditious article, and the appellant (chairman and managing director of the newspaper) who had appointed the editor, was also convicted. The latter neither consented to nor knew of the publication of the article, but the West African Court of Appeal rejected his appeal, holding him vicariously and strictly liable. The court stressed that the definition of sedition contained no such qualifying word as "knowingly" or "negligently."

In the application of ordinary rules of statutory interpretation, the Queensland Full Court in the above case held that:

The subject matter of the law does not exclude the operation of section 24 -- that can be excluded only by express provision or some provision of a law relating to a subject inconsistent with the coexistence of the section as applicable to that subject.

In the instant case, the court implied that it was the policy to make sedition a strict liability offence since it was an offence against the safety of the state.

Thus, in the case above, where the subject-matter of the statute is the regulation for the public welfare of a particular activity -- statutes regulating the sale of food and drink are to be found among the earliest examples -- it can be and frequently has been inferred that the Legislature intended that such activities should be carried out under condition of strict liability. The presumption is that the statute of statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with...thus sellers of eat may be made responsible for seeing that the meat is fit for human consumption and it is no answer for them to say that they were not aware that it was polluted.

The accused in the instant case, entered a woman's room uninvited, took off his cloths, 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 rape." They are merely acts which indicate that the accused person wanted to have and had made preparation to have connection the woman. There was no evidence that the accused 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 raped as defined in section 357 of the Criminal Code. The intent would have manifested if the accused person had made attempts to forcefully have sexual intercourse with the woman without her consent. Therefore, the charge against the accused failed because rape requires intent to ravish a woman against her will. But the court held that the act of the accused person amounted to indecent assault to the woman.

The prosecution must prove that the accused person intended to commit the offence which the accused alleged to have attempted. Thus, in this case, the accused person could not be guilty of attempting to commit rape because he did not intend sexual penetration.

It was the decision of the court in this case that the accused person, who was a handcuffed prisoner, was guilty of attempting to escape when he broke the handcuff.

The court held as sufficient attempt in the instant case for the posting of a letter with intent to procure another to forge currency notes. It is immaterial that the letter did not reach the addressee.

The Appeal Court in this case held that a trial judge was wrong to rule that there could be no attempted rape unless D had made an actual physical attempt to penetrate P's vagina with his penis.

The court in the instant case, held that:

...a defendant, in order to be guilty of an attempt, must be in one of the states of mind required for the commission of the full offence, and dis (sic) his best, so far as he could, to supply what was missing from the completion of the offence. It is the policy of the law that such people should be punished notwithstanding that in fact the intention of such a defendant has not been fulfilled.

In this case, D accosted a woman and took her to a deserted coal shack. His intent was to rape her. The woman struggled for her breath. D said to her, 'you know what I want.' He unzipped his pants and started pulling up her skirt. The woman succeeded in removing D's hand from her mouth, and after assuring him that she would not scream, told him that she was pregnant and pleaded that he should desist or he would hurt her baby. When D ascertained that the woman was pregnant, he left her alone and warned her not to scream or call the police, else, he would kill her. D was convicted of attempted rape.

The decision of the court in the case above was that while a person may be guilty of murder, though there was no actual intent to kill, he cannot be guilty of attempt to commit murder unless he has specific intent to kill.

In the instant case, the court held that intention involved "proof of specific intent, a decision to bring about, in so far as it lies within the accused power, the commission of the offence which it is alleged the accused person attempted to commit, no matter whether the accused desired the consequence of his act or not."

In this case, intention was given its ordinary meaning by the court. That is to say, the accused must have decided to bring about the result. The court stated that for the commission of offence, a direct or purposive intention is required.

In this case, the court held that D might be guilty of attempted rape if he tried to have sexual intercourse with a woman, being reckless whether or not she consented to his doing so.

The court in this case, held that for the purposes of the Criminal Attempts Act, a man has an intention to commit rape if he intends to have sexual intercourse with a woman, being reckless whether she consents.

The court in the case above held that D was guilty of attempted murder by the attempted administration of a dose of poison though, he may well have contemplated further doses, which may be necessary to kill.

In the instant case, the appellant, a married man, had an affair with a woman who then started a relationship with another M.C. Foreman. When she refused to resume their association, the appellant applied for a shotgun certificate and three days later, bought some guns. He shortened the barrel of one of them and test fired it twice. Three days later, he told his wife he was going to Spain to work on their chalet and left home dressed normally for work. He then changed into a disguise of overall and a crash helmet with the visor down. He waited outside a school where Foreman dropped his daughter off and then jumped into the rear seat and asked foreman to drive on. They drove to a grass verge where the appellant took the loaded sawn-off shotgun from a bag and pointed it at Foreman at a range of some 10-12 inches and said: 'You are not going to like this.' The safety catch of the shotgun was in the position. Foreman grabbed the end of the gun and after a struggle managed to throw it out of the window and make his escape. The appellant was convicted of attempted murder. He appealed against his conviction on the premises that he had not yet committed the actus reus of this offence.

At the trial, counsel to the appellant argued that the appellant would have to perform at least three more acts before the full offence could have been committed, that is, remove the safety catch, put his finger on the trigger and pull it. It was then argued that the evidence was insufficient to support the charge. In his judgment, His Lordship, Taylor, L.J, rejected the contention that section 1(1) of the Attempts Act 1981 embodies the "last act" test which is inconsistent with the section. His Lordship stated that the appellant's actions in obtaining the gun, in shortening it, in loading it, in putting on his disguise, and in going to the school were all preparatory acts. Finally, his Lordship stated that once the appellant had got into the car, taken out the loaded gun and pointed it at the victim with the intention of killing him, "there was sufficient evidence for the consideration of the jury on the charge of attempted murder." Consequently, the appellant's appeal was dismissed.

The appellant in this case, planned to robe a sub-post office. He drove a motorbike to near the post office, parked it and approached, wearing a disguise of sun glasses and a crash helmet. Although, he later placed the sunglass in his pocket. He was carrying an imitation gun and a threatening note which he planned to pass to the cashier in the sub-post office. He was walking down the street end when one yard from the post office door, police, who had been tipped off, grabbed the appellant and arrested him. He was convicted of attempted robbery, and he appealed against his conviction. Watkin's L.J. was of the opinion that in offence of attempts, the preparatory acts ended when the accused embarks on the crime proper. His Lordship was also of the opinion that in the definition of attempt in the Attempts Act 1981, reference to common law is unnecessary. His Lordship was also of the opinion that in the circumstances of the case, it was not in doubt that the appellant, at the material time, was carrying an imitation firearm which he made no attempt to remove from his clothing.

His Lordship stated that there was no suggestion which indicated that the appellant had, in the course of making his way down the road, moved towards the door of the post office so as to indicate that he intended to enter that place. His Lordship further stated that in order to effect robbery, it would have been impossible unless the appellant had entered the post office, gone to the counter and made some kind of hostile act which is directed at whoever was behind the counter and in a position to hand him money. The Appeal Court also considered the appellant's acts of making his way from his home, dismounting from the cycle and walking towards the post office as indicative of mere preparation. His Lordship finally held that:

"... If a person in circumstances such as this, has not even gained the place where he could be in position to carry out the offence, it is extremely unlikely that it could ever be said that he had performed an act which could be properly said to be attempt."

In this case, a native court clerk accepted a cow with the promise that he would use his influence on the court to obtain the donor's acquittal on a criminal charge. The court held that the mere promise does not constitute the attempt.

In the instant case, the receipt of a sum of money for the purpose of making counterfeit coins was held by the court as not sufficient to constitute an attempt "to make or begin to make any counterfeit gold or silver coin."

In the case above, the accused person, a car salesman, was entitled to commission on cars sold through him. The procedure for payment was that he prepared a voucher for his entitlement and after approval by the Sales Manager and the Chief Accountant, it was presented to the Cashier for payment. He forged the signature of the Sales Manager on a voucher prepared by himself and presented it to the Chief Accountant. The Chief Accountant was dissatisfied and wanted to see the Sales Manager personally, whereupon the accused seized the voucher and ran away, destroying part of the voucher before he was apprehended. He was convicted of attempting to steal the amount on the voucher.

In the above case, however, the accused persons tapped rubber trees and placed coconut shells in position so that the latex flowed into them. When the owner came, they ran away. The High Court held that these facts did not amount to an attempt to steal the latex.

"It is my view", the learned judge said, "that until the accused persons have made the move to take away the latex that flowed from the trees, the offence is not consummated."

In this case, the accused person wrote a letter of inquiry but did not post it. The court was of the opinion that from the facts of the case, the accused had not manifested a firm intention to prepare for forgery.

In the above case, the accused person entered for an athletics meetings and filled in the entry form falsely, representing that he had never won a race, and so obtained a favourable handicap and won the races. He never had a chance to apply for the prizes before his arrest. The court held that he was guilty of an attempt to obtain by false pretences.

A jeweler in the above case, who had insured his stock against burglary, hid the jewelry, tied himself up, called for help and represented to the police that his premises had been burgled. His object was to obtain policy money from his insurance company. The court held that his actions were still merely preparatory; they were remotely connected with the commission of the full offence.

In this case, D offered to pay A $1000 for killing X. D procured a loaded gun and after dark, went with A to the intended place of ambush. Where they had reason to expect X to appear shortly. As D was handling the weapon to A, D was arrested. D's conviction for attempted murder was affirmed even though there was no evidence that X went there that night.

In the instant case, the accused person having an accident with his van, pushed it into a nearby wood and reported to the police that it had been stolen and inquiring whether he could claim for it. Nonetheless, he was acquitted of attempting to obtain money from his insurers by deception on the basis that his actions were insufficiently proximate to the actual obtaining of the money.

The former cabinet Minister Storehouse in this case, faked his own death by drowning off Miami Beach and was discovered some time later in Australia living under an assumed identity. He had effected large insured policies on his life and charged with attempting to commit an offence under section 15 of the Theft Act 1968, i.e. to enable his wife to obtain monies from the companies insuring his life by his deception. His wife, who was innocent, had not made any claim under the policies when D was discovered to be alive. In answering the question whether D's act was sufficiently proximate to amount to attempt, the House of Lords laid one definite rule for attempt, which is said to survive the 1981 Act. The House held that D would certainly commit the actus reus of attempt if he performed the last act dependent on him.

The House of Lords in the instant case, decided militating factors which would make it impossible for an accused person to commit the crime he had set out for himself under common law conspiracy. They are:

1. Insufficient of means -- For instance, where D may be guilty of incitement and P who is incited may not be guilty of attempted burglary because the jimmy given to P by D to commit the offence, it is impossible to break in with the jimmy.

2. Factual (or physical) impossibility -- For instance, no matter the means adopted by the accused person, it is impossible to commit the crime. This is usually due to the fact that the subject-matter of the crime does not exist.

3. Legal impossibility -- For instance, where even if the accused did all he planned, the act would not constitute a crime.

In the instant case, the accused person was charged with attempting to handle stolen goods. The goods had been recaptured by the police and had therefore ceased to be stolen goods when the attempted handling was made. The House of Lords held that the accused was not guilty of attempt. Their Lordships further held that a person would not be guilty of a criminal attempt if what he set out to do would not, contrary to his belief at the time, amount in law to a crime if successfully completed. If what he is attempting to do is after all impossible, e.g. he enters a room to steal a specific property which is no longer there, he is not guilty of a criminal attempt. But he would be guilty if the attempt fails because of ineptitude, inefficiency or insufficient means

In the above case, D bought a video recorder for E110, which she believed, but was not sure whether it was stolen, and she told police so. Since the police had no evidence to prove the first charge which bordered on whether the recorder was in fact stolen, they offered no evidence on that point. The magistrate based on this, also believed that the recorder was not stolen. The charge was dismissed. The Divisional Court allowed the appeal by the prosecution. The House of Lords restored the decision of the Magistrates.

In the case above, the accused placed magic power in a court room with the intention of influencing the court to enter a favourable judgment in a certain case. He had been convicted of an attempt to obstruct the course of justice contrary to section 126(2) of the Criminal code. His appeal was allowed on other grounds, but the court also said:

...apart from this, it seems advisable to point out that a person may lawfully hold a belief, whether based on superstition or not, that by some intrinsically innocuous and inoffensive act he can influence a decision of a court in his favour. The mere doing of such an act in his case cannot constitute an offence against section 126(2) of the Criminal Code.

The position of the law in this case is that if A puts his hands into B's pocket, whether or not there is anything in the pocket capable of being stolen, if A intends to steal, the act of A has amounted to a criminal attempt.

In this case, D was arrested by customs officials with a suitcase which he admitted contained prohibited drugs. But the material in the suit case after analysis was not prohibited drugs but a vegetable material which looks like snuff. He was convicted of knowingly concerned in dealing with prohibited drug, contrary to section 1(1) of the Criminal Attempts Act 1981 and section 170(1) (b) of the Customs and Excise Management Act 1979. His appeal to the Court of Appeal was dismissed, so also his appeal to the House of Lords which overruled its decision in Anderton v. Ryan.

In this case, the court held as sufficient a conviction for attempting to procure the commission of a riot to show that the accused person addressed a meeting urging the weapons against his political opponents.

In this case, the court held that in the offence of inciting policemen to mutiny under section 44(a) -- an offence striking "at the very basis of duty and allegiance" -- there was no need to prove that the accused incited the breach of any particular order; it was enough that he had addressed an audience, amongst which he knew were a number of police officers, and had urged that they should not use force to put down any riots that might occur.

In the above case, the West African Court of Appeal adopted the well-known definition of Willes, J. in Mulcahy v. R. and defined conspiracy thus:

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself... punishable if for a criminal object or for the use of criminal means.

The Court of Appeal added that:

The gist of the offence of conspiracy lies, not in doing the act or effecting the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties.

The House of Lords in the instant case, held that an agreement which does not include some torts, fraud, the corruption of public morals and the outraging of public decency was not indictable as a public mischief.

In this case, a lawyer was convicted, at first instance, of conspiring with two post office employees to tamper with postal matter. The substantive offence, in section 163 of the Criminal Code, by its very definition, can only be committed by an employee of the Post and Telegraphs Department, which the lawyer clearly was not. Nevertheless, the West African Court of Appeal dismissed his appeal on this ground. The West African Court of Appeal stressed that the essence of conspiracy is the formation of the agreement. They stated thus:

In our view a person may be charged and convicted of conspiracy to commit a crime of which he could not, if he stood alone, be convicted.

In the above case, the House of Lords stated that:

...it is clearly, the law that an agreement by two or more by dishonestly to deprive a person of something which is his or to which he would be or might be entitled and an agreement by two or more by dishonestly to injure some proprietary rights of his, suffices to constitute the offence of conspiracy to defraud.

The facts of this case is that D agreed with the employees of cinema that, in return for payment, they would abstract films without the consent of their employers, or of the owners of the copyright, so that D might make copies infringing the copyright, and distribute them for profit. The court held that D was guilty of a conspiracy to defraud, even though no one was deceived.

The Privy Council in the above case directed the jury as follows:

...the prime objective of frauds men is usually to gain some advantage for themselves, any detriment or prejudice to somebody else is often secondary to that objective but nonetheless is a contemplated or predictable outcome of what they do. If the interests of some other person -- the economic or proprietary interest of some other person are imperiled, that is sufficient to constitute fraud even though no loss is actually suffered and even though the frauds man himself did not desire to bring about any loss.

In the instant case, African students occupied their Embassy in London. The occupation being a trespass in tort as it was done without the consent and approval of the person in possession, but the way in which the students conducted themselves after the occupation made their act to become a criminal conspiracy.

The decision of the court in this case, the court held that an agreement to cause grievous bodily harm is not sufficient to support a charge of conspiracy to murder even though it is sufficient to support a charge of conspiracy of murder itself.

The law in the above case is that if the conspiracy is to commit an offence, the charge must allege the particular offence, but the offence does not need to be described with such accuracy as if the accused persons were being charged with the offence itself.

In the cases above, the court held as was correct to charge a man with conspiracy to utter counterfeit coins (C.C. s. 152) even though the charge did not mention the element essential to the offence of uttering, namely guilty knowledge.

In this case, the position of the law is that if a conspiracy to commit an offence is charged, then it must be shown that what was agreed to be done constitutes a crime in law, and also that what was agreed to be done was a crime at the time of the agreement.

In this case, the elders of a community had met together and agreed that from time to time, they would hear and try cases of theft in their community and would deal with the offenders according to their own rules drawn up by a qualified lawyer. They were convicted by the magistrate for assuming to act as judicial officers contrary to section 107(1) of the Criminal Code and (2) for conspiring to so do. The High Court quashed the conviction on the first count on the ground that the appellants had not assumed to act as judicial officers within the definition of that expression in section 1 of the Criminal Code (which does not cover member of a native community exercising judicial powers). The High Court affirmed the conviction for conspiracy. The Federal Supreme quashed the appellants' conviction. The Apex Court held that although, there was an agreement to do something unlawful, the finding that there was no offence under section 107 of the Criminal Code inevitably led to the conclusion that there was no conspiracy to assume to act as judicial officers.

The court held in this case, that on the particular facts of the case, the nature of the evidence was such that an acquittal of stealing must also mean that there was not sufficient evidence of an actual conspiracy.

In this case, the appellants, who were in a position to influence the conduct of members of a Trade Union, demanded from contractors who required the service of labourers, certain sums of money and higher rates of pay that had hitherto been paid in that particular trade. Their conviction under section 422 of the Criminal Code was quashed on the grounds that merely exerting pressure on would-be employers of labour did not constitute deceit or fraudulent means, even though the labour question was required for an essential public service.

In the instant case, the defendant left notes in public places inviting boys to meet him and offering money for unexplained but allegedly for immoral purposes. His conviction for the offence of outraging public decency and attempt to incite a child under the age of fourteen to commit an act of gross indecency was quashed on the basis that the offence was not made out, though doubts were expressed about the existence of the offence.

In this case, a ladies directory was published by the accused person advertising information about named prostitutes. In affirming the existence of the offence of conspiracy to corrupt public morals, Lord Simmonds was of the view that the judiciary had a residual power to create new criminal offences to deal with new situations.

The decision of the Queen's Bench Division in this case is that a person cannot be charged alone for the offence of conspiracy. The Managing Director who committed some criminal acts against the company alone, cannot be charged of conspiracy with the company. This is because to allow such indictment in such circumstance would be to offend against the basic concept of a conspiracy, namely an agreement of two or more to do an unlawful act. It would be artificial to take the view that the company, although it is clearly a separate legal entity can be regarded here as a separate entity or a separate mind.

In the above case, D a girl aged between 12 and 16 years, was said to have abetted E to have unlawful sexual intercourse with her. The court held that D could not be convicted of abetting because the Act "was passed for the purpose of protecting women and girls against themselves."

In the instant case however, a woman erroneously believed herself to be pregnant. She conspired with two persons to commit an abortion. But unknown to her, she was not pregnant at the time. The position of the law at the time is that a person who unlawfully uses instruments on a woman who does the same act to herself is guilty only if she is in fact pregnant. The court held that all of them were guilty and that the same would have been the result if she had conspired with any of them.

The court had held in the above cases that it was a conspiracy to make an agreement to obtain a passport (a lawful purpose) by false representation, or gain entry into an Inn of Court by means of a forged certificate.

The position of the law in the cases above is that if two persons are accused of conspiracy and one is acquitted, the other person must also be acquitted. This is because two are at least, required to commit the crime of conspiracy.

The law in these cases is that if A and B are tried separately and A pleads guilty or if found guilty and B is found not guilty, this is not by itself enough reason to quash A's conviction. B's acquittal might have proceeded on a mere technical ground which casts no doubt if it has resulted in a miscarriage of justice of is otherwise inconsistent with B's acquittal.

In the cases above, the law is that where one accused person is acquitted, it does not mean that the other must also be acquitted. This is because the acquittal of that other person may have been in error.

In the instant case, D1 and D2 were charged with conspiracy to defraud. D2 had acted on the directives of D1. D1 was discharged and D2 was convicted. On appeal against conviction by D2, the appellate court, in allowing the appeal, held that their case is definitely interwoven and inseparable from one another and the discharge of D1 had serious repercussions on the appellant's conviction because in such a situation, the conviction of the one cannot stand where the other accused is discharged.

The Supreme Court in the above case, held that:

"Where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was acquitted and discharged."

In this case, three appellants were charged of the murder of the deceased. They were convicted and sentenced by the trial judge. On appeal to the Appeal Court, the convictions of the two other persons were quashed, but the conviction of the appellant was affirmed. On appeal to the Supreme Court, the Apex Court in allowing the appeal, held thus:

...where the evidence against two accused persons in a criminal case is in all material respect the same and a doubt is resolved by the trial judge in favour of one of the accused persons the same doubt should also be resolved in favour of the others. Consequently, if one is discharged and acquitted, the other should also be discharged and acquitted.

The Appeal Court, commenting on how conspiracy is proved in the case above held:

Conspiracy is usually proved by the evidence of subsequent conduct of the accused towards the commission of the substantive offence -- See Enahoro (1963) L.L.R. 91. In this case there is evidence that anything had been done to execute the agreement. The respondent agrees to commit the offence.

On proof of conspiracy, the Supreme Court in the instant case, said:

Where persons are charged with criminal conspiracy, the elements of conspiracy as disclosed in the charge musts be proved and it must be established against the person or persons so charged that he or they have engaged in it. However, it is not always easy to prove the actual agreement. The court can infer the agreement from the surrounding circumstances of each given case and from inferred circumstances, it can safely presume the conspiracy...

The decision of the court in the instant case was that the necessary "element of persuasion" was satisfied by a suggestion, proposal and/or request that was accompanied by an implied promise of reward.

In the case above, pressures were mounted on Mr. & Mrs. Watson by Mr. Applin and Mr. Taylor, to admit white children into their foster homes which they kept solely from sincere and unselfish motives, as a practical demonstration of their Christina faith. The contention was that Mr. & Mrs. Watson foster homes had more coloured children than white children. On August 26, 1991, a public meeting was organized by the National Front, where Mr. Applin read extracts from the circular. Mr. Taylor said:

"While you have people such as Mr. Watson who delight in putting immigrants' welfare before their own peoples, this process of turning more and more of British towns and cities into coloured ghettoes will continue."

The Race Relations Board issued proceedings in the County Court claiming that the acts done by Mr. Applin and Mr. Taylor were unlawful. The Court of Appeal held that:

If therefore, Mr. Applin and Mr. Taylor insisted Mr. & Mrs. Watson to do an unlawful act, i.e. to make white children only, they are treated as themselves doing the act, even though incitement did not succeed...A person may 'incite' another to do an act by threatening or by pressure, as well as by persuasion. Mr. Applin and Mr. Taylor undoubtedly brought pressure to bear on Mr. & Mrs. Watson to take white children only, and thus 'incited' them to do so.

In this case, the accused left notes in public places offering money and presents to boys. There was nothing lewd, obscene or disgusting in the notes but the Crown claimed that they were designed to have boys for immoral purposes. A conviction for attempted incitement was quashed on appeal because the notes went 'no further than to seek to engineer a preliminary meeting.'

The decision of the court in the above case was that publishing a book on the cultivation and production of cannabis amounted to incitement to commit an offence contrary to section 19 of the Misuse of Drugs Act 1971. The question then was when was the offence committed? The court held that the offence was committed as soon as the book was published and read by any one whether influenced by it or not.

In the instant case, the defendant was charged for indictment to commit incest and the particulars of the offence charged were that the defendant unlawfully incited a girl then aged 15, who was to his and her knowledge his daughter, to have intercourse with him. The court took the view as accepted by the Crown, that at common law, the crime of incitement consists of inciting another person to commit a crime. While considering the indictment along with the particulars of the offence pleaded, the court held that if the girl was under the statute incapable of committing the offence, the defendant cannot be guilty of the common law crime of incitement. The considered the provisions of section 11 of the Sexual Offences Act, 1956, which protects girls under the age of 16 from criminal responsibility. Under this section, even if incest was actually proved against a girl under sixteen, she is protected from criminal responsibility. Thus, by parity of reasoning, a girl said to be the subject of incitement, was being incited to do something, which, if she did it, could not be a crime by her.

The court therefore said:

"We have therefore come to the conclusion, with regret, that the indictment does not disclose an offence known to the law because it cannot be a crime on the part of this girl aged 15 to have sexual intercourse with her father..."

In this case, D paid E E50 to find someone to assault P. The court held that there was no case to answer on an indictment alleging that D incited E to assault P and that it is not an offence to incite another to become "an accessory before the fact."

In the instant case, D incited X to handle what he thought were stolen lamb carcasses in cold store when in fact there were no stolen carcasses in that store. The court held that D could be convicted of an incitement to commit an impossible offence.

In the above case, the appellant was asked by the father to find someone to rob a woman on her way to a bank by snatching wages from her. The appellant, believing the robbery was to take place, approached B, who was unemployed and in need of money, and encouraged him to take part in the proposed robbery. The proposed robbery was in fact a ploy by the father as he intended to use it to collect money from the police for providing false information about a false robbery. The appellant was convicted of inciting B to commit robbery by robbing a woman near the bank. He appealed against his conviction, contending that at common law, incitement to commit an offence could not be committed where it was impossible to commit the offence incited, and that, since the proposed robbery of the woman was fictitious, it was impossible to commit that robbery.

The House of Lords overruled its decision in Haughton v. Smith. Lord Akill J. said:

...we have come to the conclusion that...Lord Scarman's speech (in Nock) does not support the proposition that cases of incitement are to be treated quite differently at common law cases of attempt or conspiracy...The explanation of McDonough's, as it seems to us, is that though there may have been no stolen goods or no goods at all which were available to be received at the time of the incitement, the offence of incitement to receive stolen goods could nevertheless be proved because it was not impossible that at the relevant time in the future the necessary goods would be there.

It is legitimate for the police, when they know that a crime is to be committed, to wait until the crime is completed in order to catch or apprehend the parties involved in the crime. This is the position of the law in the above case.

In the instant case, the deceased had gone out, armed to hunt the accused whom he suspected of theft. There was no doubt that the accused, who was a thief, had killed the deceased, but it was not clear from the evidence how the clash between them had occurred. The killing might well have been in self-defense. Therefore, the accused's conviction was quashed by the Appeal Court.

The position of the law is that even in civil cases, a party who bases his pleadings on allegation of crime committed by the other party must prove it beyond reasonable doubt.

In this case, even though the trial judge had observed that he had no reasonable doubt whatever as the guilt of the accused, the conviction was quashed by the appellate court. This is because elsewhere in the judgment, the judge had remarked that "all the Criminal Law of Evidence is only the evidence of probabilities."

The Federal Supreme Court in the instant case, held that in the case of trials before a judge or a professionally qualified magistrate, it is to be assumed that he has in mind the elementary principle that the prosecution must prove its case beyond reasonable doubt, and that there is no need for him expressly to direct himself on the point. The court added that this presumption may be rebutted by an appellant's showing "if he can't from the terms of the judgment that the Magistrate either had not the rule in mind, or departed from the rule.

The prosecutor in proving its case is obligated to prove same beyond reasonable doubt. The Apex Court in the above case, however, pointed out that proof beyond reasonable doubt is not the same thing as proof beyond a shadow of doubt.

The Federal Supreme Court in this case rejected the stand which said that the fact peculiarly within the knowledge of the accused whether he committed the offence and that the onus should be on him to disprove it lies on the accused person. In this case, the accused was although, in charge of two Lorries which disappeared, the onus was not on him to explain how it was that it was not him that stole the Lorries.

The Privy Council in the cases above, said in a section in the Ceylon Evidence Ordinance identical to the Nigerian section 140 thus:

It is the law of Ceylon that the burden is not upon an accused of proving that no crime has been committed.

In the burden of proof, where an accused person raises a defence that he killed the deceased in self-defence or by accident, , the rule is that the general principle still holds that the onus is on the prosecution to prove its case beyond reasonable doubt. This was the position of the law in the cases above.

The position of the law is also the same in the instant case where the accused person raises the defence of provocation against a charge of murder.

The Full Court in Queensland has decided in the above cases that in cases of mistake under their section 24 (our section 25 of the Criminal Code), the onus of proof is on the prosecution to exclude beyond reasonable doubt the operation of mistake where there is evidence of it.

The decision of the Full Court in Queensland in the instant case where the claim of right is raised is as same in the cases of Loveday v. Ayre and Brimblecombe v. Duncan cited above.

The position of the law in the case above is that courts should not indulge in speculation. However, the court in confining itself to the case before it, has a duty not to completely ignore an attempted defence. This is because a defence, no matter how stupid or foolish it might appear, must be considered by the courts for what it is worth.

In the case above, D, a soldier who shot at a vehicle with some occupants, said the purpose for his action was to arrest the occupants of the vehicle whom he believed on reasonable grounds to be determined terrorists whose arrest, he claimed was important so as to prevent them from continuing the act of terrorism. The court held that the use of force was not reasonable to make an arrest but was justified to prevent crime.

In the above case, the High Court on appeal held that a plea of self-defence was not open to the appellant because nothing which the decease did or was seeking to do to the appellant fell within the categories of acts set out in section 65(a) (b) or (c) of the Penal Code.

The accused person in the instant case, unarmed, attacked his wife's lover. The court held that the wife's lover exceeded his right of private defence when he stabbed and killed his assailant.

The appellant in the case above, entered a house at mid night to steal while the inmates were asleep. One of the inmates grabbed him and the appellant stabbed her to death. The appellate court rejected the plea of private defence. This is because the deceased had a right to effect arrest of a person she reasonably suspected of committing an offence.

In this case, the appellant snatched the deceased matchete and struck him several times after the deceased had fallen on the ground. The appellant's plea of self-defence was rejected because his action went far beyond what was necessary for the defence of his person or liberty.

Ademola C.F.J. (as he then was), held in the above case that he who is in actual and peaceful possession under the Criminal Code, even if he was originally a trespasser, must be ousted from the land with a reasonably force by a claimant. No matter if the claimant be the rightful owner, there must be recourse to the law or the courts.

The accused person in the instant case, heard shouts of thief, thief. He came out and saw a man running, he aimed his gun at the man, fired and killed the man. It turned out that the man was not the thief. The accused was convicted of manslaughter and not murder.

The accused person in this case, alleged that the victim threatened her with a chopper, threw a pen-knife at her causing a slight injury. The question then was whether in the circumstances of the case, she was justified in retaliating the say she did. Lord Widgery said that the retreat concept does not mean that a person threatened should run away in the dramatic way as suggested by counsel for the appellant but what is required is that he should demonstrate y his action that he does not want to fight. He must demonstrate that he is prepared to temporize and disengage and perhaps, made some physical withdrawal and that is necessary as a feature of the justification of self-defence.

The Privy Council in deciding an appeal from Jamaica in the instant case, considered a killing resulting from the use of excessive force in self-defence to be murder.

In this case, the accused person was threatened with a knife and ordered to follow the 2nd accused person to a store from where the 2nd accused wanted to steal. The threat was that the 1st accused should keep watch on the street, else, he would be stabbed with a knife. At their trial, the 1st accused place reliance on section 31(4) of the Queensland's Criminal Code (equivalent with section 32(4) of our Criminal Code). The court said that the above phrase must be interpreted strictly and that as the 1st accused was inside the store, he could not be said that he was 'actually present' with the 2^nd^ accused who was outside the store. In other words, the defence will not avail an accused person that was compelled to do an act or omit to do an act if, from the circumstances, the accused had an opportunity to flee from the person who made the threats to him.

The accused person in the case above, voluntarily joined an unlawful society and was present when a woman was killed. The Supreme Court, per Adetokunbo Ademola, rejecting the accused's defence hinged on compulsion, held:

...It is necessary to emphasize that if a person joins a society of which one of the objects is murder, and is present and acquiescent when murder is carried out in pursuance of the objects of the society, it is no defence to say that he did not commit the murder with his own hands or even that he refused a command to do so unless the circumstances of his refusal were such as to indicate a compete and final repudiation of the society...

In this case, the accused person, the deceased person and one other person were fishing in a river at night. The accused's net got entangled with a net cast by the deceased person and his mate. As both parties tried to disentangle their nets, the accused's canoe capsized and he was thrown into the river. In an effort to save his life, the accused found the deceased canoe, as a hand hold and, pulled the canoe nearer to get into it and in the process, the deceased canoe also capsized. The deceased who was in the canoe was drowned. The court held that the accused was guilty of manslaughter and that section 32(4) of the Criminal Code Act was not applicable. This is because there was evidence that the accused person could swim and there was no clear evidence that he was in a very extreme necessity or that death was imminent when he pulled the deceased canoe.

In the instant case, M struck a blow at S who subsequently died from a haemorrhage. The medical evidence was that it would not be usual for such a blow to cause death, and that S had a peculiar weakness. Nevertheless, the Court of Criminal Appeal upheld the conviction for unlawful killing.

In this case, the accused person fired an air gun at a group of children and hit one, but claimed that he intended only to frighten them and was not aiming to hit. He was acquitted. On appeal by the Attorney-General, the High Court defined an event occurring by chance in terms of foresight. Dixon, C.J. said:

I think that this somewhat difficult phrase covers events which the person who might otherwise be criminally responsible neither intended nor foresaw as possible results of his conduct: they must, too, be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct.

The accused person, during a domestic quarrel with his wife, and of the verbal exchanges, went outside the house and sat down. His wife followed him outside and continued to berate him. He picked up a slight stick and as it was very dark, he aimed a moderate blow in the direction of the voice. Unknown to the accused, his wife was then carrying their baby in her arms. The blow struck the baby on the head and killed the baby. The trial judge felt bound by the decision of the High Court of Australia in Mamote-kulang of Tamagot v. R. that death cannot be an event for the purpose of section 23 of the Queensland Code. The trial court therefore convicted the accused of manslaughter.

On appeal against conviction, the appellate court held that the accused person was exonerated by section 23 (our section 24). Barwick, C.J. and McTiernan, J. held that he was exculpated by the first limb of the section ("act...which occurs independently of the exercise of his will"). The relevant act, the court held, was not merely the wielding of the stick but "the bodily movement involved in striking with the strick and the impact of the blow on the child -- the cause of death. Kitto, Menzies and Owen JJ, held that the accused was exculpated by the second limb ("event which occurs by accident"). Windeyer, J. held that the accused person was exculpated by either limb.

In the instant case, A, B and C were sitting in the front of a truck. The accused person threw an axe at A which missed him and wounded B. On a charge of unlawful wounding, the trial judge relying on R. v. Martyr held that section 23 (our section 24 was inapplicable because the willed act of throwing the axe was the direct cause of the wounding and refused to leave the issue to the jury. On appeal, all the judges held that the question of accident should have been left to the jury because if the wounding of B was not reasonably foreseeable, it was an event which occurred by accident. The judgments affirmed that the direct consequence of a willed act may be an event for the purpose of section 23 contrary to views expressed in R. v. Martyr and in Mamote-kulang of Tamagot v. R.

In the case above, the deceased gripped the appellant's gun. In an attempt to recover it from him, the appellant accidentally touched the trigger and the gun went off and killed the deceased. The court held that section 24 of the Criminal Code Act applied. The prosecution failed to prove that the firing was voluntary or that the circumstances disclosed recklessness. The appellant was therefore, not guilty of manslaughter.

In this case, two school boys, A and B were playing a dangerous game. Following a push by A, B slipped, fell into the river and was drowned. The court held that B's death was not an accidental event because a reasonable person would have appreciated the danger of pushing another near a river in the circumstances. Therefore, section 24 of the Criminal Code did not apply.

D in the instant case, threw a burning stone at V. V caught fire and died subsequently. D's conviction for murder was upheld by the Appeal Court. In the Supreme Court, the issue of accident was considered and rejected. The Apex Court, per Oputa, JSC held that throwing the stove at V was D's willed act. The event that followed it was V's death. The Apex Court per Oputa, JSC, considered whether the act of D was accidental. He said thus:

"It seems to me that the expression 'an event which occurs by accident used in section 24... Describes an event totally unexpected by the doer of the act and also not reasonably to be expected by an ordinary person, the reasonable man of the law. An event is thus accidental if it is neither subjectively intended not objectively foreseeable...

V's death was quite foreseeable, and was therefore, not an accidental event.

D in the instant case, threw a burning stone at V. V caught fire and died subsequently. D's conviction for murder was upheld by the Appeal Court. In the Supreme Court, the issue of accident was considered and rejected. The Apex Court, per Oputa, JSC held that throwing the stove at V was D's willed act. The event that followed it was V's death. The Apex Court per Oputa, JSC, considered whether the act of D was accidental. He said thus:

"It seems to me that the expression 'an event which occurs by accident used in section 24... Describes an event totally unexpected by the doer of the act and also not reasonably to be expected by an ordinary person, the reasonable man of the law. An event is thus accidental if it is neither subjectively intended not objectively foreseeable...

V's death was quite foreseeable, and was therefore, not an accidental event.

In the above case, V's car accidentally hit D's motorcycle causing D's little daughter to fall into a gutter. V apologized, came out of the car and D slapped him. He fell, and hit his head on the tarred road. He sustained head injuries and subsequently died. The High court held that the offence was not murder but manslaughter. The conviction was upheld by the Appeal Court. In the Supreme Court, the main issue was whether V's death was accidental. Their lordships unanimously held that it was not. The conviction for manslaughter was upheld.

In the above case, D and his colleague, two policemen, stationed at a toll gate, pursued and caught up with V's vehicle which passed the toll gate. As they asked questions of V, D's gun went off and killed V. One view of the evidence was that D shot V deliberately. Another view, put forward by D, was that the gun went off when it hit the bonnet of V's vehicle. It became a question of oath against oath. D was given the benefit of the doubt. His conviction for murder was quashed and conviction for manslaughter was substituted on the ground that although, the firing of the gun was not D's will act, nevertheless, he was grossly negligent in the manner he held the gun. And as section 24 was "subject to express provisions of this code relating to negligent acts and omissions", D was not entitled to the benefit of the section.

In this case, two drivers, D and V, were scrambling for passengers. In an ensuing scuffle, V held D by his shirt around the neck. D got a screw driver and stabbed V first on the hand to make him release his hold, and then on his left chest. V slumped, fell motionless and died subsequently. The trial judge rejected the defence of accident because from the nature of the wound (three inches deep), and the instrument used, D at least, intended to cause grievous bodily harm. The Appeal Court however, took a different view. It held that:

The stabbing occurred independently of the exercise of the will of the appellant and the injuries which led to the death of the deceased occurred by accident.

In the instant case, V returned home early one morning, parked his car and came out. X challenged him for parking his car where he did. V ignored him. D who was sitting with X went up to V and slapped him on the forehead. V fell, hit his head on the tarred road and died three days later. The High Court convicted D of manslaughter taking the view that section 24 did not apply because the slap was an intentional act and did not happen by accident. The Appeal Court (Uwaifo, Kutigi JJCA, as they then were; Oguntade JCA, as he then was, dissenting) held that the second limb of section 24 exculpated D. V's death was an accidental event because "it was not intended and not reasonably probable."

The Court proceeded to consider the unlawful act doctrine of English law according to which death resulting from an unlawful and dangerous act is manslaughter. The court held that although, the slap was unlawful, it was not a dangerous act.

In the instant case, a prisoner was alleged to have committed unnatural offence aboard a ship lying in British waters. He was a native of Bagdad. His lawyer argued that the man being a foreigner, he did not know that such act was an offence. The court held that the fact that his conduct was not an offence in Bagdad was not a defence legally because ignorance of the law was not a defence.

In this case, the court held that a sailor who was away in his ship in faraway African waters when an act was prohibited in England by a law which received the Royal assent only a few weeks before the committal of the alleged offence. The accused could not be excused on account of his ignorance of the new prohibition even though he did not know and could not have known of it.

In the instant case, the accused persons introduced a mixture of glycerine, Dettol and Surf into a woman's vagina in an attempt to abort for her. The woman died as a result of that. The accused persons contended that they reasonably believed that the insertion of the liquid was a safe procedure. The Court of Criminal Appeal rejected the argument on the premise that the mistake was not a mistake as to the existence of a state of things, it was a mistake as to what consequences could flow from an act. It would be different, the court suggested, if an abortionist ordered a harmless solution from a chemist, and the chemist supplied a lethal substance unknown to the abortionist. In such a case, if a woman died as a result, the abortionist could be said to be mistaken as to the existence of a certain state of things, i.e. that the bottle contained the harmless substance ordered by him.

In the above case, the accused person believed that the miscarriage and mortal illness of his wife was due to the witchcraft of an old woman. The accused person hit the woman with a hoe on her head which led to the woman's death. It was a finding of fact which was not disputed, that the accused's belief was bona fide and that a belief in witchcraft was prevalent in the community in which he lived. At the accused's trial, the issue was whether on that evidence, the accused would be convicted for murder. The accused's defence was that he never intended to kill the woman but only to cast out the magical spell he thought the deceased possessed. Since under section 25 of the Criminal Code Act, for defence of mistake of fact to avail an accused person, such a mistake must be reasonable.

The West African Court of Appeal dismissed the appellant's appeal against the conviction for murder. The court cited a previous though unreported case, Ifereonwe v. R. also in the West African Court of Appeal, which had held that where a man kills another in the belief that he is bewitched by him, the mistake could not be regarded as reasonable. The court quoted with approval a passage from the trial judge in Ifereonwe v. R., viz:

I have no doubt that a belief in witchcraft such as the accused obviously has is shared by the ordinary members of his community. It would, however, in my opinion be a dangerous precedent to recognize that because a superstition, which may lead to such a terrible result as is disclosed by the facts of this case, is generally prevalent among a community, it is therefore reasonable. The courts must, I think, regard the holding of such beliefs unreasonable.

In the above case, the wife of the accused person jeered at the accused and taunted him as an impotent man. In fact, the wife told the accused that she was having an affair with another man. In a rage, the accused struck her to death. The court in deciding whether the accused's act is reasonable, held that the reasonable man's test should be interpreted as the effect it would have on a reasonable man of the accused's standing in life.

In the case above, the accused person killed a fellow hunter under the mistaken belief that what he aimed at was a monkey. The trial judge described the accused's act as negligent and referred to the accused person as a 'careless person.'

In the case above, the deceased left the accused in the house and went outside. As he was outside, the accused took a gun and held it, pointed at the door. He believed the gun was not loaded but he did not ascertain that. As the child (now deceased), re-entered the house, the gun discharged and killed him. The accused was guilty for manslaughter. His mistake that the gun was not loaded being held unreasonable though, honestly conceived.

In the instant case, the abduction of a girl aged sixteen years was considered a strict liability offence for which the accused person was charged. It therefore means that no matter how reasonable the accused's mistake was as to the age of the girl, he was still liable on that ground.

The accused person in this case, shot and killed a human being under a mistaken belief that what he aimed at and shot was a monkey. The trial court convicted him under section 224 of the Penal Code for manslaughter on the grounds that he was negligent. The reason the trial judge gave in sentencing the accused person was that the accused fired at a point-blank range and that the accused ought to have been certain where his shot will hit before firing.

In the instant case, the accused person was mistaken that her husband who had not been heard of for five years previously was dead. She remarried. She was charged of bigamy. The offence of bigamy is statutorily defined as being complete when whoever being married shall marry any other person during the life of the former husband or wife. The court considered that the offence requires intention to go through a marriage ceremony. But the court availed the accused the defence of mistake on the ground that it was based on reasonable grounds.

In this case, someone heard shouts of thief, thief. He came out with a din gun and shot the person who was running. He was charged for murder. He was convicted for manslaughter. Though the accused believed that the person he shot was an armed robber.

In the instant case, the accused believed his wife that his child felt sick. When he saw the wife who was backing a baby, he chased her and gave her matched blows and the child fell off and died. On appeal, it was argued on behalf of the accused person that he thought the child had already died and that what the wife was backing was a corpse. The court held that his believe was not honest or reasonable.

The Northern Region High Court in the instant case, on the reasonableness of foresight under the Penal Code definition of culpable homicide stated:

In applying the 'reasonable man' test, the court must take into consideration, the background, education, and worldly knowledge of the individual; a person from a remote, backward part of the country might well differ in this respect from an educated person. After the court has given due consideration to the person's way of life, it must apply the test to the average person in that way of life...

In the above case, rumours were rife that a ghost was found wandering in the accused's village. On the fateful day, the weather was dark and windy. The accused having in his mind the ghost's rumour found a dark object who refused to identify himself. The accused person struck the dark object only to discover that the dark object was a human being. The accused was charged under section 284 of the Sudan Penal Code for murder. He pleaded the defence of mistake of fact. The court in upholding the defence, took into account the ghost rumours which prevailed in the village, the weather condition and the fact that the deceased failed to identify himself when requested to do so by the accused.

In the instant case, the accused person bought drinks for a woman who he wanted to befriend. The woman rejected the drinks and the accused struck her to death. The accused defended himself by saying he thought the woman was a 'baatiya', a kind of evil spirit. His plea of mistake of fact was rejected because it was not held in good faith for he has met the woman before and bought drinks for her.

In the case above, the accused persons were told that the deceased used derogatory words against Prophet Muhammed (SAW). They mounted a manhunt search for the deceased with a view to impose the sentence on him as prescribed in a book called Risalla. They later found the deceased in the palace of the village head. The village head pleaded with them to allow him take the matter to the police so that the deceased person will be taken to the court and tried for the alleged defamatory words. The accused persons refused and threatened the village head. The deceased person over-heard what transpired between the village head and the accused persons and ran away from the palace of the village head and took refuge in a bush. The accused persons trailed the deceased person to the bush and caught him. One of the accused persons brought out the book of Rissalla and read a portion from it where a death sentence is prescribed for someone who insulted the Prophet (SAW). One of accused persons took out a knife. The rest of them gripped the accused and he was killed.

They were arrested and charged to a High Court in Kebbi State for conspiracy, abatement and culpable homicide punishable with death contrary to sections 85, 97 and 221 of the Penal Code. The accused persons rested their respective cases on that of the prosecution without giving any evidence or calling witnesses. The prosecution called 8 witnesses and tendered some exhibits. The accused persons' counsel place reliance on section 45 of the Penal Code. At their trial, the question arose whether under Nigerian law, Islamic law inclusive, parties were allowed to seek revenge by taking the matter into their hands. The trial judge analyzed the opinions of various Islamic Schools of Law, and came to the conclusion that Islam is not a barbaric religion; that Islam has established courts system for addressing grievances and, that whereas some Islamic School of Law permits seeking redress through personal revenge, the school of thought followed in Nigeria -- the Maliki School of Law does not permit seeking personal revenge. There must be recourse to the court.

The High Court judge convicted the accused persons of culpable homicide punishable with death and sentenced them accordingly. The appeal to the Appeal Court against their conviction failed. On the defence of justification under section 45 of the Penal Code, the Appeal Code held:

The essential element required for the defence of justification under section 45 of the Penal Code is that the accused must act in good faith ad must exercise due inquiry on his belief before his action can or will be justified... In this regard although an honest and reasonable mistake of fact may be excusable under the defence of justification, a mistake of law is not so excusable. In any case as in the case of witchcraft, the standard of living or the position in life of the accused person as well as the manner of life of the community have to be considered by the court.... Thus the standard or test for the justification of the act of the accused person under section 45 should be an objective one like that of the provocation.

In this case, one of the issues raised by the appellant at the Supreme Court was whether the Appeal Court was right to have raised the defences of justification and provocation suo motu without giving the appellant the right to be heard on them. Since the appellant did not lead any evidence at the trial court, the Supreme Court held:

I will begin by stating or rather restating the settled principle of law on the topic raised under it to the erect that while the trial court is under an obligation or has duty to consider all the defences possible or available to the accused (appellants) on the facts even though they appear to be stupid improbable or unfounded, and whether or not they were specifically raised by the appellant, it (i.e. the trial court) cannot give him (the said appellant) the benefit of defences which were not supported or reflected by the evidence on record... As a corollary to the above rule or principle, the trial court is only under an obligation or duty to consider such defence(s) open to the accused person only as disclosed or supported by the evidence on the printed record. In Ekpenyong v. State (1993) 5 NWLR [Pt. 205] 513, the court held that a court of law will not presume or speculate on the existence of facts not place before it and that accused person is usually required or recommended to give his evidence viva voce rather than adopting his previous extra-judicial statement for his defence or resting his case on the evidence of the prosecution as done by the appellants in the instant case...

In the instant case, a bye-law was enacted by the Kordofan provincial authorities to prohibit the exportation of foodstuff from that province to neighbouring provinces. The accused violated this by-law by exporting wheat outside the province and was charged for the offence. The court acquitted the accused on the grounds that mere publication of the bye-law in the provincial headquarters could not serve the accused, a village farmer, with a notice. The plea of ignorance of the bye-law was held to be a good defence.

C.O.P. V. EDWARD NWACHUKWU

(1969) ECSNLR 110

Bona fide claim of right: Whether section 23 of the Criminal Code Act avails a person who took the matter into his hand during the pendency of the matter in the law court

In the case above, the appellants uprooted the crops planted by the respondents on a piece of land which was a subject of litigation by the parties. His plea of claim of right was rejected.

I.G.P. V. EMEOZO

(1957) WRNLR 213 (H.C.)

Application of section 23 of the Criminal Code Act with respect to claim of right

In this case, the accused had demanded money from another man, alleging that the man had committed adultery with his wife, and that if the man did not pay, he would sue for compensation under native law and custom (as he would be entitled to do against an adulterer). The magistrate, not believing that adultery had in fact been committed, convicted under section 406 of the Criminal Code Act (demanding property with threats). Thomas, J, allowed the appeal, even though no actual adultery had been committed. He cited the head-note to a well-known English case, R. v. Bernhard, "a person has a claim of right if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or fact."

In the above case, P used B's car without his B's consent. P knew that B had not given consent, but he believed that B would give his consent if asked. The Court of Criminal Appeal stressed that if P did not believe at the time he took the car that he was entitled to take, then he would have no defence.

In the instant case, the accused set up an illegal court to hear a claim for return of dowry. He allowed the claimant to present his case, and without hearing the defendant, he ordered his messenger to beat and lock the defendant up in a room as a result of which the defendant's relative paid the money to the complainant. The Supreme Court held that this conduct amounted to stealing. The Apex Court said that the accused could not plead that he was acting bona fide; the accused did not allow Ogiri (the defendant) to state his defence to the claim. The plea was rejected because illegality in procedure vitiated the defence.

In this case, the accused was convicted of robbery because during the civil war, he used the services of armed soldiers to demand from a chief money due to him from an oil company which had been paid to the chief. The court said:

The accused may be legally entitled to the property and he may also feel satisfied that his demand is honest but when the demand is accompanied by the use of some violence or threat to life, the law negatives the legality of what may be a legitimate right in the property claimed.

However, in this case, a creditor severely beat up his debtor and thereby obtained payment. He was held not guilty of robbery.

In this case also, the defence of claim of right availed the accused on a charge of robbery when he used force to obtain wage packets for himself and his wife at a time when wages were not yet due.

In this case, the court held that section 23 of the Criminal Code Act protected the appellant who hired labourers to pull down blocks belonging to the respondents. The blocks were heaped on a land, the title of which the appellant honestly believed he had a valid claim.

In the instant case, the defence of bona fide claim of right availed an accused on a charge of demolition of a dwarf wall on disputed land.

The defence of claim of right was accepted by the court on a charge of destruction of cement pillars, surveyors' block, barbed-wire fence and plants in this case.

A plea of claim of right was not rejected by the court in the case above on a charge of destruction of three uncompleted buildings with a caterpillar.

The courts, in the above case, started that if it is shown that the appellant acted in assertion of an honest claim of right, the question will then arise whether his act in the circumstance was reasonable.

In this case, the defence failed because the conduct of the accused who destroyed plants on disputed land was held to be unreasonable by the court.

The High Court in the instant case, overruled the trial magistrate when it held that the defence of claim of right did not avail the accused persons who had destroyed a partially completed building on disputed land because their conduct was unreasonable.

The Supreme Court in the above case however, stated:

It is enough if the belief is honestly held and there can be no justification for reading into (section 23) of the Criminal Code any implied requirement that it should also be a belief which it was reasonable for the accused person to hold.

In this case, D was charged with wilfully and unlawfully removing and defacing survey beacons lawfully erected on a piece of land, unlawfully damaging six boys' quarters, unlawfully damaging a cement block wall fence, unlawfully damaging six wooden frames. His defence of honest claim of right was rejected in both the magistrate and the High Courts. The courts took the view that the defence in section 23 of the Criminal Code Act is not limitless but it is circumscribed by the magnitude of damaged inflicted on the property. The Appeal Court held otherwise. In allowing the appeal, the Appeal Court observed that:

"Once it is shown that an accused person has a bona fide claim of right, the required mens rea is negative. The extent of the damage done by him while it may be a factor to be taken into consideration in determining as a fact, whether his claim of right is honest or bona fide, cannot restore the mens rea that is already negatived by the finding that he had the honest belief that he had the right to do what he did."

In the instant case, the appellant filed a suit in the High Court claiming ownership of a piece of land. While the suit was pending, the complainant who also claimed ownership of the land erected some poles on it to connect electricity to his house while performing a funeral ceremony. After the ceremony, the complainant refused to remove the poles when requested to do so. The appellant then removed the poles himself. He was convicted of malicious damage to property by the trial Chief Magistrate who took the view that if the appellant had tolerated the poles on the land for about ten months, he did not tell the court what was the immediate act of trespass that provoked him into doing the alleged damage. The magistrate held that the appellant acted in bad faith.

The appellant appealed to the High Court and his appeal was dismissed on the premise that in removing the poles, he did not show enough respect of law and order. The Appeal Court, Enugu Division (Uwaifo, JCA dissenting) upheld the decisions of the two lower courts. It held that the appellant must have known that the procedure adopted by him was wrong. Having taken the dispute to court, the appellant should have awaited the result of the litigation and the appropriate order before taking any further step. The appellant had no right to take the matter into his own hands once the court is seized of the matter.

The Supreme Court after examining relevant authorities, quashed the appellant's conviction. The Apex Court, per Ogundare, JSC, who read the lead judgment stated that:

...what is essential is that the appellant believed honestly that he had the right to remove the poles from his land. It is immaterial that he acted in an 'uncivilized' way or 'unreasonably'.

The Apex Court, per Ogundare, JSC, concluded that the element of reasonableness "had no place in the defence." Per Nnaemeka-Agu, JSC, recognized that the law "is not in a tidy state" because of divergent judicial attitude to the question of reasonableness. Having examined the authorities, he concluded that reasonableness is not an element of the defence in section 23 and the courts should not introduce that element into it. On the condemnation of the appellant because he resorted to self-help, the learned justice warned against extending the principles of civil liability to criminal cases. Uwais and Kawu JJSC concurred with the lead judgment. Kutigi JSC was very cautious. Although, he agreed that section 23 exonerated the appellant. He thought that the appellant should have gone to court rather than resort to self-help which is something to be actively discouraged.

In this case, the appellant, an acting Chief Superintend of Police, led the Mobile Police Force which was under him on a widespread assault and looting spree in order to recoup himself of money stolen from the wife near the market at Aba. He was convicted of assault and stealing. On appeal, it was argued that his subordinate officers who took part in the raid and who had testified against him were accomplices whose evidence required corroboration. Rejecting the argument, the Supreme Court thought that section 32(2) applied to them.

In the instant case, the accused, an officer in the Biafran Army, was ordered by his superior officer to lead two other officers to Nike which was then in the hands of federal troops and identify the deceased (a former Biafran soldier accused of sabotage) to those officers who were to kill him. The accused obeyed the order and was subsequently charged with murder after the civil war. He pleaded superior orders but the trial judge rejected the defence because the order was given by an officer of an illegal regime whose orders were necessarily unlawful. On appeal, the Supreme Court preferred to uphold the conviction on the ground that as the accused went into federal territory disguised as a civilian and appearing to be a member of the peaceful private population and committed an offence therein, he was liable to punishment like any other civilian.

In the instant case, the court held that where a husband and wife were charged with receiving from their son who was seven years a child's tricycle knowing it to have been stolen, they must be acquitted on the ground that since the child cannot steal, the tricycle was not stolen. This is because the child was regarded as doli incapax. But if the child is below fourteen years in English law and below twelve years under the Nigerian Codes, the presumption that such a child is a doli incapax is rebuttable.

The law in this case is that if a child of seven or over and under 12 years is charged with an offence, there is a legal presumption that he is not capable of committing the offence which is rebuttable on proof that he had capacity to know that he ought not to do what he did.

As was decided by the court in the above cases, the only exception is that there is an irrebutable presumption that a boy under 12 years is incapable of having carnal knowledge. Such a child may be convicted of the lesser offence of indecent assault.

The test as to whether a child truly appreciates that what he was doing was wrong and his conduct forbidden by law, and the realization of the inherent wickedness in that very act has been decided by the court in the instant case that the child must have known that his act was "gravely wrong, seriously wrong."

The position of the law is that a husband or a wife cannot incur criminal responsibility for doing any act in respect of each other's property. Therefore, a husband cannot be charged with wilfully setting fire to his wife's house.

The position of the law in applying the general rule of the offences against property, the position of the law is that a husband can be guilty of assaulting his wife, no matter slight the assault might be. A husband cannot be guilty of any offence involving unlawful carnal knowledge in respect of his wife, but he can be guilty of an indecent assault on her under section 360 of the Criminal Code Act.

A husband can be guilty of raping his wife if they have been legally separated. This the court decided in the above case.

It is also the law that a husband can be guilty of assault against his wife if sexual intercourse is accompanied by undue violence.

The decision of the court in the above case in applying the general rule as to the criminal responsibility for doing any act in respect of either the husband or the wife's property, the husband and wife must be living together at the time of the alleged offence. In other words, the husband and wife are still living together in the eyes of the law.

The law is that proceedings against a person for stealing or doing unlawful damage to property which at the time of the offence belongs to that person's wife or husband can only be instituted by or with the consent of the Director of Public Prosecutions. The restriction does not apply if the husband and wife are charged with committing the offence jointly or if there is a judicial order at the time of the offence that they be not bound to cohabit.

In this case, the court held that a firm could be prosecuted for certain offences under the old Mineral Ordinance.

In the instant case, a company was convicted in respect of the fraudulent act of its agent, even though he intended to defraud the company.

In this case, the court held that the subject-matter of section 100 of the Criminal Code Act (an offence described as "Public Officers Receiving Property to Show Favour") was such repugnant to define "person" so as to include corporations.

In the case above, although, the conviction for stealing was quashed on the other grounds, there was no conviction for stealing quashed on the other grounds, there was no suggestion that a corporation could not be convicted of stealing.

In the instant case, the argument that mens rea cannot be attributed to a corporation was specifically rejected. The fact is that a corporation was charged under section 14(1) of the Eastern Region Newspaper Law (1955) which provides that:

"Any person who publishes or reproduces, or circulates in a newspaper any statement, rumour or report knowing or having reason to believe that such statement, rumour or report is false, shall be guilty of an offence."

In convicting the accused company, Ainley C.J. said:

I make no doubt that a corporation can have knowledge of the falsity or otherwise of that which is published in a newspaper, and a corporation, through its agents, is clearly capable of making enquiries as to the falsity or otherwise of what it there publishes. A corporation is also capable of publishing newspapers. I cannot seen therefore, why a corporation is incapable of publishing in a newspaper that which the corporation knows, or has reason to know is false.

In this case, the House of Lords held that the acts of a store manager employed by the defendant company which operated a chain of supermarkets was not the act of the company itself.

The position of law in the instant case is that there can be no trial if an accused person is not fit to plead. In English law, the accused's fitness to plead upon arraignment is determined under sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964 (now Criminal Procedure (Insanity to Plead) Act 1991.

The unfitness of the accused person to plead is determined by the court through raising questions relating to whether the accused would understand the difference between pleas of guilty and not guilty; challenge the judge and follow evidence, and instruct his counsel. (This position of the law, especially, was directed at the deaf and dumb rather than to mental ill accused persons) This was the position of the law in the instant case.

The English Court of Appeal held in the above case that the actus reus and mens rea of the offence of theft have to be proved where there is a finding of disability or unfitness to plead.

The decision of the court in this case is that the prosecution or the defence can raise the issue of the unfitness of the accused person to plead. Where the prosecution or the defence did not raise the issue, the judge can raise the issue suo motu if he has some doubts about the accused's fitness to plead.

The court in the instant case, held that the judge should exercise his discretion of postponing the trial of the accused person where there is a reasonable chance that the prosecution case will be successfully challenged. In other words, the jury may allow the prosecution to proceed with the case and leave the issue of fitness to plead to be raised at the time of defence.

In this case, the law is that an accused may refuse to plead to the charge against him. Where this happens, the court shall ask him his reasons. If the court decides that the reasons adduced by the accused are not valid and the accused still refuses to plead, a plea of not guilty shall be entered on behalf of the accused and trial shall proceed.

The five accused persons in the above case, were charged with the offences of murder and robbery with violence before the Lagos High Court. When the charge was read and explained to them, three of them pleaded not guilty. The remaining two stood mute. They moved about in the court and behaving funny. The trial judge called for oral evidence in order to determine their mental condition and their fitness to plead. Prisons Warders who had been attending to them and a Specialist Psychiatrist who examined them gave evidence. At the end of that exercise, the trial jury gave a verdict and held that their muteness was not as a result of visitation of God but was due to malice. Trial commenced, and at conclusion of trial, they were convicted and their conviction was affirmed by the Supreme Court.

The accused person in this case, was charged with the offence of murder. A medical officer had certified him to be mentally abnormal before the trial and he was recommended for observation in a mental home. At a sitting on another date, the accused person pleaded not guilty to the charge, but his counsel suggested that he should be medically examined. The court so ordered and the case was further adjourned. On the adjourned date, the first medical certification was produced but the trial judge indicated that he preferred to call a fresh medical examination to determine the accused's fitness to plead. The accused's counsel indicated that he would prefer the accused to stand trial because the accused had given proper and rational instructions. Counsel's opinion in that regard was also confirmed by the trial judge. When the charge was read to the accused person, he pleaded not guilty. At the conclusion of the trial, the accused was convicted as charged. He appealed against his conviction and the appellate court held thus:

i. That the provision for investigation of insanity in section 23 and 224 of the Criminal Procedure Act must be taken up as soon as the question arises and must be resolved on evidence;

ii. That the doubt created by the medical officer's certificate was in this case resolved without evidence as to whether he had recovered and was fit for trial or not; and

iii. That in the circumstance, a retrial would be ordered.

The position of the law in the above case is that if the judge has any reason to suspect that the accused person is of unsound mind, either before the commencement or during the course of trial and incapable of making his defence, then before proceeding any further, the court must investigate the question, taking such medical evidence as required.

The law in this case is that if the court is not satisfied that the accused person is capable of making his defence, then the trial shall be postponed, and the accused shall be remanded for a limited period of observation by a medical officer. Such remand may also be made on the application of a law officer or State Counsel. If the medical officer certifies soundness of mind and capacity to make a defence, the trial shall proceed, unless the court is satisfied to the contrary by the defence. If he certifies incapacity, then the court may still proceed with the trial if not satisfied with his certificate.

The position of the law in the above case is that if the court is satisfied with the certificate, it may release the accused person on bail or report the case to the Governor of President, who may order the accused into custody. When anyone confined in this way is subsequently certified capable of making a defence, then the trial may proceed. The words 'unsound of mind and incapable of making his defence' include people who are not insane within section 28 of the Criminal Code, but who nevertheless cannot, by reason of some physical or mental condition, follow the proceedings and so cannot make a proper defence.

In examining the same phrase in Kenya Penal Code, the East African Court of Appeal has held that it is not enough for a court to consider whether the accused was capable of understanding the charge. The court must also consider whether the accused person was able to provide to a reasonable extent for the instruction of his advocate and the conduct of his defence.

In this case, the court laid down tests for determining the degree of mental disorder required for relieving of criminal responsibility. The tests are called the MacNaughten Rules. The rules are:

Every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved.

To establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or if he did now it, not to know he was doing wrong.

If a person commits an offence under an insane delusion and is not in other respects insane, he must be considered in the same situation as to responsibility as if the facts with respect to which the delusions exist were real.

In this case, the Appeal Court however, rejected the formulation in the McNaughten's rules and said that an accused will have a defence if he can establish that his unlawful acts was the product of mental disease or mental defect.

The court in this case, held that the mere hysterical amnesia preventing the accused person from remembering the events in question was not enough to halt the trial.

In this case, the accused killed his victim to avenge the death of his mother. The only evidence adduced by the defence was that of the accused himself. Rejecting the accused's defence based on insanity, the West African Court of Appeal defined 'natural mental infirmity' as a defect in mental power neither produced by the accused person's default nor the result of the disease of the mind.

The definition of natural mental infirmity was adopted by the Federal Supreme Court in the instant case wherein the court stressed the fact that whatever a defect in mental power might mean, at any rate, it is not equivalent merely to inability to master the passions. Brett, F.J. in advancing the definition of natural mental infirmity further, suggested that guidance for the meaning of 'mental defect' may be sought from the English Mental Deficiency Acts of 1913 to 1938, where mental defectiveness is defined thus:

A condition of arrested or incomplete development of mind existing before the age of eighteen years, whether arising from inherent causes or induced by disease or injury.

The accused person in this case, has been unhappily married to the deceased wife. He killed the deceased wife by administering 100 aspirin tablets. He surrendered himself and said 'I suppose they will hang me for this. Medical evidence suggested insanity but the English Criminal Court of Appeal rejected the defence. The court ruled that "wrong" means merely contrary to law, and there was no defence for the accused person who knew that the law forbade him to kill his wife but who, it was argued, killed the wife thinking his action to be morally right

In the above case, however, the High Court of Australia took an opposite view from Windle's case. The High Court demonstrated that the correct test is whether the accused person could tell good and evil, not merely whether he could distinguish between legality and illegality. The court pointed out that in most cases, if an insane man knows that an act is contrary to law, he will also know that it is wrong to do the act.

In this case, the court stated that in ascertaining the existence of a 'disease of the mind', the physical condition of the brain is irrelevant.

The accused person, a disciple of a Pir in the above case, was told by his mistress that he should bring a human head on the first day of Ramadan in order to secure a place in Heaven. He killed two, one of whom was his daughter and exclaimed, 'you had asked for one head, I brought you two.' The Indian Court held that whether or not he knew that killing was forbidden by Indian law, he was clearly unaware of the wrongfulness of his action.

Even though an accused person may understand what he is doing, and even though he may also appreciate that he ought not to do it, yet he may still raise a defence if he can show that his mental disease or infirmity was such that it deprived him of capacity to control his actions. The Court of Appeal in this case remarked that this allows a defence that the accused was acting under an irresistible and/or uncontrollable impulse. However, the court dismissed the appellant's appeal since the only evidence in support of the defence was the statement of the appellant himself that he could not control himself.

The court in the instant case, allowed the defence of the accused person. This is because the medical evidence was that as the result of a previous and serious accidental injury, the accused was liable to attacks of mental disorder. A doctor said that although, the accused might know what he was doing and that he was doing wrong, yet when he had one of these attacks, he was unable to control his actions. The court accepted the doctor's version of the accused's state of mind, adding that in this case, they resumed that the doctor had kept fully in mind the possibility that an accused can be an impostor.

In this case, the West African Court of Appeal adopted the phrase of a witness -- that a delusion is 'a symptom of mental disturbance and a false belief which is unshakable by facts.

The law is that to establish a delusion, the accused person must prove that it was due to some form of mental disorder failing short of a mental disease or defect. But that does that necessarily would enable the accused to escape criminal responsibility. He has been unable to show that he lacks the capacity to understand what he is doing, or capacity to know that he ought not to do the act or make the omission, or capacity to control his actions. If the accused person is affected by a delusion that his mother has been killed by another, then he has no defence if he kills the other person by way of revenge. This is because the act is still murder even though the facts had been as he believed them.

The appellant in the instant case, suffered from delusions which induced him to believe that the deceased would send evil spirits to kill him at night. He waylaid the deceased and killed him. He was convicted of murder because assuming the facts to be as he believed, he was not acting in self-defence (as defined in section 286 of the Criminal Code) when he killed the deceased.

In the above case, the appellant killed the deceased, his brother. The killing was because of the deluded belief that the deceased brother stole his money; told the appellant's employer something adverse to the appellant's interest and tried to bewitch the appellant and gang up people against the appellant. The decision of the court was that even if all these were true, they did not afford the appellant any defence for murder.

In the instant case, the appellant suffered from the delusion that his wife was a witch and that in conjunction with others, she had bewitched him, rendered him impotent and was planning to kill him by means of witchcraft. The appellant therefore killed his wife. He was convicted for murder. On appeal, the Supreme Court affirmed his conviction because even if the facts were as he supposed them to be, he was at no time apprehensive of immediate danger to his life and could not therefore be said to have acted in self-defence.

The West African Court of Appeal in the case above, accepted that the appellant, who had been convicted of murder, was mentally disordered at the time he committed the act and was suffering from delusions. The appellant's deluded belief was that the deceased had been following the appellant's wife around and had said that he would take the wife away. But the court upheld the conviction for murder on the premise that the appellant had stated at his trial that he know that he was doing wrong when he stabbed the deceased.

However, in this case, the Appeal Court held that the question whether the accused person knew that he was doing wrong at the material time is irrelevant under the second limb of section 28 of the Criminal Code.

In the above cases, the law is that whether an accused person is insane or not will be a question of fact to be deduced from the evidence in a particular case. Absence of any motive for the crime is not a sufficient ground by itself on which to infer insanity, though it may help to establish insanity when taken into account with all other pieces of evidence.

The position of the law also is that there may appear to be no motive for the crime, yet such appearance must be treated with extreme caution. This is because the accused person might in fact, have had a strong motive known only to himself.

In this case, insanity was inferred by the court from the fact that witnesses had known the accused person to suffer severe headaches, to wander about at night, to speak in a meaningless manner, to laugh insanely, to throw his food away, and to go to school with a shoe and sock on one foot only, and coupled with evidence that the accused's mother had similar headaches, that his father had no proper control over his mental powers, and that in prison, the father urinated into his food.

The court in the instant, did not attribute the accused's moroseness and seeming abnormality to a disease of the mind, but merely to an illness causing physical pain.

The accused person in this case, killed the deceased and immediately ran into the bush and hid himself. His defence of insanity failed because he knew that what he did was a wrong and contrary to law.

In the above case, the accused killed two children. When she sighted a policeman, she ran away with a machete in hand. She raised the defence of insanity. The defence failed because she perfectly understood what she did and that she ought not to do the act.

The law is that in establishing insanity, medical evidence is desirable, but the medical evidence is not essential. The court has decided that it may reject the evidence of a psychiatrist on the premise that it is hearsay.

The Supreme Court in this case, held that an accused person who pleaded insanity is scarcely a competent witness on the point and, in any case, the probative value of such evidence must be considered low. In other words, evidence by an accused person of his own mental infirmity is usually suspect and unreliable for establishing his insanity. The Apex Court, per Omo JSC said:

"The consequent injustice that can flow from acceptance of the ipse dixit of an accused person as to the state of his mind in proof of his mental infirmity is too obvious to require further comment. It will be easy, were that permitted, for a vicious but imaginative murderer to establish a defence of insanity."

In the instant cases, it has been decided that an Appeal Court will be reluctant to interfere and/or disturb the trial court's findings of fact that an accused person was sane.

In this case, the decision of the court is that it is required that the defence must establish that it was 'most probable' that the accused person was insane.

However, the West African Court of Appeal in the above, cited with apparent approval the Privy Council ruling in Sodeman v. R. that the burden is not higher than the burden resting upon a plaintiff or defendant in civil proceeding; and the burden in such cases is to prove what one wishes to establish on the balance of probability.

The law in the cases above is that if the accused person does not plead insanity but the evidence of the prosecution witnesses suggest insanity, the court may make a finding based on such evidence.

It is the law that the burden of proving incapacity to make a defence is on the defence, in view of section 27 of the Criminal Code Act.

A finding of insanity relieves of criminal responsibility, just the same way as a finding of mistake or compulsion. And since section 285 of the Administration of Criminal Justice Act provides that 'where the act would have but for the finding of incapacity constituted an offence' i.e., the act did not constitute an offence, the correct verdict is 'not guilty' by reason of insanity.

The law in the cases above is that if the defence pleads insanity but does not lead evidence to prove it, the court may infer it from evidence adduced by the prosecution.

The position of the law in the instant case is that when a man acts in a state of unconsciousness, he is said, in English law, to have a defence of automatism, a term which can be defined as 'unconscious involuntary actions' which does not result from a disease of the mind and which is a defence because the mind does not go with what is being done.

Automatism is not to be found in the Criminal Code. It has no precise legal significance. It is no more than a modern catchphrase which the courts have not accepted as connoting any wider or looser concept than involuntary movement of the body or limbs of a person. It is a convenient one to describe the sorts of unconscious involuntary action covered by section 24 of the Criminal Code as was decided in the above case.

The Queensland Full Court in this case, held that concussion resulting from a blow on the head in a game of rugby football was not a disease of the mind.

In this case, a devoted father violently attacked his young son for no reason. It appeared that he was suffering from a cerebral tumour which was liable to cause 'blackout' and outbursts of impulsive violence. The defence raised automatism, and the father was acquitted.

A devoted husband in the instant case, violently attacked his wife for no apparent reason. He was suffering from hardening of the arteries which led to a congestion of blood in the rain and a temporary lack of consciousness. The defence raised automatism. Devlin, J. suggested to the jury that this might be a case of temporary insanity with the M'Naghten Rules, and the jury so found.

The defendant in this case, was a diabetic and a nurse at a mental hospital. He took prescribed insulin, drank a quantity of spirits and took very little food. He became unconscious due to hypoglycaemia (a condition which occurs when there is too low level of blood glucose) and assaulted a patient causing the patient bodily harm. The trial judge ruled that the evidence could only support a defence of insanity and not automatism which was pleaded by the defendant. The defendant pleaded guilty and was convicted.

On appeal, the Appeal Court after referring to Lord denning's dictum in Bratty v. A.G., Northern Ireland 'that any mental disorder which manifested itself in violence and is prone to recur is a disease of the mind' observed that if this was right and without qualification, difficulty arises as to whether the defendant should be diabetic merely because he had a low blood sugar reaction; and common sense is affronted by the prospect of a diabetic being sent to such a hospital, when in most cases, the disordered mental condition can be rectified quickly by pushing a lump of sugar or a teaspoonful of glucose into the patient's mouth. The court after referring to several relevant cases, and allowing the appellant's appeal, held that the trial judge was in error in not leaving the question of automatism to the jury. The appellate court held that:

A malfunctioning of the mind of transitory effect caused by the application of the body of some external factor such as violence, drugs, including anesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.

The court pointed out that however, such malfunctioning, unlike that caused by a defect of reason from disease of the mind will not always relieve an accused from criminal responsibility.

The law in the above case is that a self-induced incapacity will not excuse an accused person. It would not also excuse where one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals while taking insulin.

The court in the instant case, held that where automatism is raised, the burden is on the prosecution to disprove it. The accused person in this case, was involved in a car accident which resulted in a death. The accused claimed that his erratic driving at the time was due to an attack of epilepsy, and a medical witness for the prosecution supported the defence. The learned judge accepted that claim, pointed out that the prosecution had not brought evidence to disprove it, and acquitted the accused.

By virtue of the provision of section 29(1) of the Criminal code, the rule relating to the defence of intoxication is that where it is voluntary, the defence would not avail the accused person even if the accused had no mens rea duly required for the crime. In the above case however, the defence would avail an accused person where it results to a disease of the mind to the extent that the accused became insane.

The law in the instant case is that where the crime charged is a crime of specific intent and the intoxication prevents the accused from having the necessary specific intent, the defence would be avail the accused person.

The law in this case is that where recklessness is essential element of the offence charged, the fact that the crime charged requires basic intent cannot be a defence.

The position of the law in the above case is that intoxication is a defence, if the person charged, was by reason of intoxication insane, temporarily.

By virtue of the provision of section 29(4) of the Criminal Code, and in the case above, evidence of drunkenness which renders an accused person incapable of forming the specific intent essential to constitute the crime charged, with other facts proved, are duly taken into consideration in order to determine whether the accused person had the intent to commit that crime.

The court has held in the above cases that mere absence of motive for a crime, however atrocious it may be, in the absence of proof of insanity, or evidence of drunkenness that produces such a degree of madness, even for a time, as to render the accused person incapable of distinguishing right from wrong, cannot avail the appellant of the defence provided in sections 28 and 29 of the Criminal Code Act.

In the instant case, the court held that the test to be applied is whether by reason of drunkenness, the accused person was incapable of forming an intention to committing the offence.

In the case above, the appellant was convicted by the trial court of murder. His conviction was affirmed by the Appeal Court. On appeal to the Supreme Court, the single ground of appeal filed was based on the defence of insanity by virtue of insanity. The appellant's confessional statement at the police station showed that the intoxication was voluntary. It was argued on behalf of the appellant that if the Appeal Court had properly reviewed the evidence before the lower court as to the alcohol taken, the amount, the lack of motive, the total irrationality of the attack, the wrong weight attached to the seemingly sane behaviors of the appellant hours after the incident has occurred, it would have come to a different conclusion as to the ability of the appellant to form a specific intent with regard to the offence.

The Apex Court, per Mohammed, J.S.C., in dismissing the appeal, stated:

In the appellant's statement before the police which the trial court accepted as a voluntary confession freely made, he said that when his friend, Nwofe Adun pushed him down and he sustained small bruises on his leg, he retaliated by using his machete and cutting him to death. On seeing that his friend had fallen and could not get up, he became afraid, dropped his machete at the scene and ran into the bush where he hid himself. A person who was insane could not have behaved in the way the appellant did. The facts of the case of Kofi Mensah v. The Queen (Supra) which the appellant's counsel referred to were clearly distinguishable from the facts of this case. In Kofi Mensah v. The Queen, the appellant who killed a woman he wanted to marry by shooting her with a gun put forward a defence that he was so drunk and could not recollect what happened to him until the moment when he found himself lying beside her and covered in blood.

In the case above, evidence was adduced which showed that the accused person had been given coffee which, unknown to him, was spiked with sedatives. Following this, he intentionally, as the jury found, indecently assaulted a young boy. The Appeal Court in quashing the accused's conviction, ruled that if the surreptitiously administered drink or drug caused the accused to lose his self-control and for the reason to form an intent which would not otherwise have formed, the law should exculpate him because the operative fault was not his. The Appeal Court was of further view that the intent formed was not a criminal intent or, in other words, that the involuntary intoxication negative the mens rea.

The House of Lords overruled the Appeal Court, holding that if the accused commits the actus reus with the mens rea prescribed by the offence charged, then he must be guilty of the offence notwithstanding that the accused exhibits no moral fault in forming the mens rea because of involuntary intoxication. The House of Lords emphasized that moral character of the accused's state of mind is only relevant when it comes to sentencing for the crime.

The accused person in the instant case, brought a knife and a bottle of whisky. He drank so much of the whisky and killed his wife with the knife. The defence was that he was either insane or so drunk as to be incapable of forming the necessary intent at the time he did the act. The accused's conviction for murder was reversed by the Court of Appeal in Northern Ireland on the ground that the judge misdirected the jury in telling him to apply the M'Naughten Rules to the accused's state of mind at the time before he took the alcohol and not at the time of committing the act. The House of Lords did not dissent with the summing-up by the Court of Criminal Appeal, but the court differed in the interpretation of the summing --up and held that the directive should have been at the time of committing the offence. The jury had found that the accused had mens rea and was not insane.

By virtue of the provision of section 139(3) (c) of the Evidence Act, and in the instant case, the burden and quantum of proving the defence of intoxication is also same as in insanity, which is place on the accused person.

In the above cases, the House of Lords held that self-induced intoxication is no defence except to offences of specific intent.

The accused person in this case, was the worse for drink when he shot the deceased with whom he had quarreled. But on the evidence, there was nothing which could even suggest that he was so drunk that he was incapable of forming the intent to kill. On the contrary, he loaded a gun, put spare cartridges in his pocket, and searched out his enemy. The accused aimed the gun at close range at his enemy and fired at a vital sport. The clear inference was that he had formed the intent.

In the instant case, the accused person was disappointed in love. He drank illicit gin and later in the day, invited the woman in question to go and pick mushrooms. On the way, they stopped at the woman uncle's farm, and the accused drank some palm wine. The accused was carrying a gun when they got to the place where the mushrooms were. The drink began to affect the accused -- according to the accused's evidence, and he could not remember anything again until he found himself lying beside the woman covered in blood. He made abortive attempt to kill himself, and he surrendered himself. The accused's evidence was not disproved by the prosecution. The West African Court of Appeal quashed the conviction for murder and substituted it for manslaughter on the premise that the whole conduct of the accused negative preconceived intent and that the trial judge might have come to a different conclusion had he directed himself correctly.

In this case, the High Court of Australia held that there is no liability for an offence committed involuntarily even though the involuntariness results from intoxication.

CHEMINIGWA V. R.**

(1956) 23 E.A.C.A. 451;

And

MALUNGU V. R.

(1959) E.A. 797;

And

DEARNLEY V. R.

(1947) ST. R. Q.D. 51;

And

R. V. NICHOLSON

(1956) ST. R. Q.D. 520;

And

;

The East African Court of Appeal has held in the above cases that:

It is of course correct that if the accused seeks to set up a defence of insanity by reason of intoxication, the burden of establishing that defence rests upon him in that he must at least demonstrate the probability of what he seeks to prove. But if the plea is merely that the accused was by reason of intoxication incapable of forming the specific intention required to constitute the offence charged, it is a misdirection if the trial court lays the onus of establishing this upon the accused.

The law is that once the prosecution has proved the requisite intention, then it is no argument for the defence that the accused person would not have formed the intention if he had been sober. It will make no difference, for instance, if the accused's drunkenness makes him more readily give way to some violent passion.

It is the position of the law that where the unlawful intent, foresight or knowledge is formed and then the accused gets drunk that in performing the forbidden act, he no longer has the requisite mental element, then the prosecution may succeed, unless the drunkenness amounts to insanity, temporary or otherwise. In the above case, the Appeal Court would have upheld the conviction for murder if there had been evidence of a preconceived intent to kill.

The law is that the fact that drunkenness made a man more negligent or more mistaken than he otherwise would have been is irrelevant. This rule also apply in a plea of provocation.

In the above case, the accused person helped in a burglary whereas the crime in focus by the parties was robbery. One of them killed the occupant of the house. The principal offender that is, the killer and his accomplice, Slack, were convicted of murder.

In this case, the court held that a husband who said Oh goody upon being told that another intended to kill his wife would make him liable for the subsequent murder.

In the above case, however, the court held that the charge should, whenever possible, specify the actual mode of participation alleged.

In the instant case, the Appeal Court, commenting on the meaning and classification of an accomplice said:

By virtue of the provision of section 198(2) of the Evidence Act, 2011:

An accomplice is any person who pursuant to section 7 of the Criminal Code may be deemed to have taken part in committing the offence as the defendant or is an accessory after the fact to the offence, or a receiver of stolen goods.

The Appeal Court defined an accomplice thus:

An accomplice is:

A person who knowingly, voluntarily, and intentionally unites with the principal offender in committing a crime and thereby becomes punishable for it.

The Supreme Court, per Kawu JSC, in adopting the classification of an accomplice in the above case classified accomplice thus:

i. A participant in the actual crime charged;

ii. A receiver of the stolen property for which the accused is accused of stealing;

iii. Where a person is charged with a specific offence on a particular occasion, and evidence is admissible and has been admitted of having committed crimes of identical nature on other occasions, as proving system or negativing accident, parties to such other similar offences.

The Apex Court, per Idigbe JSC, in the instant case, said on accomplice thus:

We think it is proper to confine this category of witness (i.e. 'tainted') to one who is either an 'accomplice' or, by the evidence he gives, (whether as witness for the prosecution or defence) may and could be regarded as shaving some purpose of his own to serve.

In this case, a father buried alive a newly born twin in the presence of the mother. The trial court held that there was no evidence that the mother took part, aided, counselled or procured, or did anything to enable or aid -- in other words, there was nothing to being the woman within the provisions of section 7 of the Criminal Code Act.

In this case, Idiong, intending to procure an abortion, induced Umo, a native doctor, to administer a drug to a woman who died as a result. The West African Court of Appeal took the view on the evidence that Umo's sole intention was to relieve the woman's pain, and that he thought the drug would have that effect. The West African Court of Appeal, applying a common law principle, held that Umo was not criminally responsible, being an innocent agent, and that Idiong was solely liable because "it is the same as if the unlawful act had been done by the appellant himself.

In the above case, a dispute arose over fishing nets between the occupants of two canoes in a river. Those in one shot those in the other, and their clansmen on the river bank helped to carry the bodies away. The only evidence against the third appellant was that he was on the bank at the time and that a call was made to him to pursue one of the disputants, though this shout appears to have had no effect. The West African Court of Appeal, in quashing the appellant's conviction as a principal offender said:

We are of the opinion that to bring a person within this section (s. 7(c)), there must be clear evidence that...the appellant did something to facilitate the commission of the offence.

The court has held in the above case that the presence at a meeting at which a killing is planned coupled with a solemn oath to do the killing is not enough to bring the accused person under section 7(b) of the Criminal Code Act.

In this case, D had raped V. X was charged as a party to the offence for having aided D. the act of assistance consisted of the fact that when V screamed (as a result of pain on penetration), X prevented another girl, V's friend who had been with them in a car from going to V's rescue. The trial court held that X was guilty as a party to the rape.

In the instant case, X had broken into a shop. D seeing someone approaching, went to the shop, knocked on the window and signaled to X to leave. X did so taking with him certain property which he had removed. D was convicted as a party to the offence of breaking, entering and stealing for aiding X.

In this case, the court held that:

Mere presence is not enough. A person must be purposely facilitating or aiding the commission of a crime by his presence, before he can be regarded as an accomplice.

D and X in the above case, cohabited in one room of a house inhabited by others and X was supplying prohibited drugs to persons who called at the house. D's conviction as a party to the offence of possession of a controlled drug (traces of which were found in the room) with intent to supply, was quashed. There was no evidence against D of any assistance, active or passive, and it was wrong for the jury to draw inference of such assistance from the mere fact that D and X lived together in the same room. This case affirms that if a person has a right to remain in a place, his exercise of that right will not make him a party to a crime being committed by another person over whom he has no control even if he has knowledge of what is going on.

The law is that if a crime is committed by several persons, and only one of the parties -- the man who merely aided in the commission of that crime is caught, the aider should be convicted under the provision of section 7(c) of the Criminal Code even though the actual committers of the offence are still at large.

In the above case, three men were charged with office breaking; two were found not guilty, but the third was convicted of aiding them. The Federal Supreme Court in allowing his appeal, and relying on the English case of R. v. Rowley in which the Court of Criminal Appeal said:

It would be absurd to say that he assisted and comforted persons whom he knew had committed a felony when they had not in fact committed a felony.

The Federal Supreme Court in this case, approved the following statement of Lawrence J, the trial judge thus:

If members of a society meet, and being faced with orders to kill a particular man, they decide unanimously to obey these orders, each man present at the meeting encourages his fellows to kill the victim.

In this case, an inhabitant of the accused's village was killed in a bicycle accident by a man from another village. The Chief summoned all the men of the village and told them that if they saw any man from the other village, they were to cut off his head and bring it to him. All the townspeople agree that they would do this thing. The accused admitted being present at this meeting and that he swore juju with his fellow villagers to kill a man from the other village. The trial judge held that he had encouraged the subsequent murder by his actions at that meeting. But the West African Court of Appeal allowed the appellant's appeal, holding that he was not the person who directed that an Okon man should be killed, but was one of those to whom the order was given.

In the case above, an alkali who ordered a policemen to slap an accused person for contempt of court was held guilty of assault by virtue of section 7(d) of the Criminal Code Act.

The Queensland Court of Criminal Appeal has held in this case that section 7 of the Criminal Code should be read in conjunction with section 24 (their section 23), and that section 7 is not intended to create responsibility for unwilled acts arising out of a plan or concert.

The Full Court in the instant case, explained further that:

Under our law (subject to any special statutory provision) the criminal responsibility of a principal for his servant's act must be determined solely by the provisions of the Code. Section 7 makes responsible for the principal offender's offence the aider, the enabler, the procurer, and the counsellor and none other. Section 23 relieves a person of criminal responsibility for an act which occurs independently of the operation of his will.

In this case, the court held that it is not enough to prove that a man know that some crime was intended. The Court of Criminal Appeal said that "it is not altogether easy to lay down a precise form of words which will cover every case that can be contemplated," but held that it must be proved that there was knowledge of the type of crime intended and committed.

The court held in the instant case that once an accused person has intentionally counselled or procured an offence, he continues to be liable if the offence is committed, unless and until he expressly countermands and/or revokes the previous counselling of procuring.

In the instant case, the accused persons were members of a society whose object was to kill thieves and anyone whom society decided to remove. At a particular meeting, the chief ordered the members to kill his wife, but when they refused, he killed her himself. There was evidence that they all knew why the meeting had been called. In dismissing the appeal, Ademola, C.J.F., delivering the judgment of the Federal Supreme Court, said:

If a person joins a society of which one of the objects is murder, and is present and acquiescent when a murder is carried out in pursuance of the objects of the society, it is no defence to say that he did not commit the murder with his own hands or even that he refused a command to do so, unless the circumstances of his refusal were such as to indicate a complete and final repudiation of the society, which none of the present applications can claim to have made.

The law is that for repudiation of an intention to commit a crime to be effective, the repudiation must be communicated to the other party before the commission of the planned crime. The court said in this case that at no time did the appellant withdraw himself from the conspiracy to the knowledge of his confederates.

The court held in the above case that a prisoner who relies on dissociation from the common purpose of the mutual aiding must be able to point to evidence which shows distinctly the dissociation evidence which shows that he made to the other party an unequivocal timely communication of his intention to abandon the common purpose.

The High Court of Australia described section 8 of the Code of Western Australia which is identical with section 8 of the Nigeria Criminal Code Act thus:

It fixes on the purpose which there is a common intention to prosecute. It then takes the nature of the offence actually committed. It makes complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence. The required connection is that the nature of the offence must be such that its commission is a probable consequence of the prosecution of the purpose.

In this case, two men set out intending to rob a girl of gems as he was coming back from market. Both carried sticks. Giving her no opportunity to surrender the gems without resistance, one of them struck her from behind and she later died. In affirming the conviction of the other man, the Federal Supreme Court held that there was no doubt that both men intended that actual violence should be used, and that it seemed a highly probable consequence of the use of violence in these circumstances that the violence would cause death.

In the case above, two men went out to steal at night from a compound. One was armed, and both knew this. The owner surprised them in the execution of their common purpose, and one of them killed him. The decision of the West African Court of Appeal was to accept the finding of the trial judge that it was the appellant himself who did the stabbing. His conviction was clearly correct. But the court added the following passage as obiter dicta:

...in the cause of a common design to commit robbery with violence, if one prisoner causes death while another is present aiding and abetting the felony as a principal in the second degree, both are guilty of murder, although, the latter had not specifically consented to such a degree of violence as was in fact used.

The position of the law in the above case is that common intention may be inferred from the circumstances disclosed in the evidence and need not be by express agreement, but a presumption of a common intention should not be too readily applied. That a proof of common intention is a condition precedent to conviction on this type of case is appreciated when it is remembered that if a combination of this kind is roved, a fatal blow, though given by all those present and aiding. The person actually delivering the blow is no more than the hand by which the others all strike (provided, it might have been added by the court, that what the deliverer of the blow does is a probable consequence of carrying out the common intention).

In this case, a lorry driver was driving at great speed on the wrong side of the road. The lorry had a left-hand drive, and the driver's companion was sitting in the right-hand front seat. A cyclist coming along the road was forced into the side of the road where he dismounted. As the lorry careered past, the driver's companion hit out with a stick at the cyclist who fell as a result against the rear of the lorry and was killed. Both men were convicted of manslaughter, but the West African Court of Appeal quashed the driver's conviction. He could only be guilty if it could be shown that it was as a result of concerted action by both men that the cyclist was killed.

The court in the above cases held that a common design to make an attack of a kind likely to endanger human life resulting in death as a probable consequence could be inferred from the fact that the accused persons were in one canoe shouting a common tribal war-cry.

The law in the cases above is that if a man goes out to rob with another whom he knows to be armed, then in such circumstances, it can fairly be inferred that they intended, if necessary, to use force in effecting the common purpose.

In this case, one of a gang set out to steal carrying a machete, but the others were not armed. The gang were surprise in the act of stealing, and a man who tried to intercept their escape was struck down and killed by the carrier of the machete. They were all convicted of murder. The appeals of the unarmed member of the gang were allowed because there was evidence that when on the point of setting out, they had warned the carrier of the machete not to use it and had told him that their only purpose in going out was to steal.

In this case, some thieves went out at night to retrieve stolen goods which they hid in a bush the previous night. They were aware that one of them carried a gun. They were all convicted of murder when one of them shot a pursuing night guard with the gun.

The law in this case is that where some persons set out to burgle a house, and one person among them possesses some housebreaking tools, such possession of housebreaking tools is deemed to be possession by all. But possession of firearms by one of them cannot be regarded in the absence of proof that it was part of their agreement to have firearms because firearms are normally not used for housebreaking.

The Apex Court in the case above held that the common intention need not be formed contemporaneously by all the members of the crowd.

In this case, the appellants were police men on patrol in Makurdi metropolis. During the course of their patrol, they saw three young men, PW3 and two deceased victims. The first appellant who was the team leader upon some suspicion ordered their search. PW3 identified himself as a youth corper and he was let go. The two deceased victims who said they were students of Benue State University were on the orders of the first appellant arrested and taken to the Divisional Police Station for further interrogation. At the police station half way into their statements, the first appellant abruptly stopped further recording of their statements, chained the two victims into a car and drove them to Ishaya Bakut Road, Makurdi. Somewhere along the road, the first appellant stopped the vehicle and ordered everybody to come down. When the two deceased victims alighted from the vehicle, the first appellant shot each of them on the chest and each fell. He also ordered the second and third accused persons who also shot the deceased victims. They were convicted and sentenced to death by the trial court. The appellant appealed to the Appeal Court. The Appeal Court made findings of the proof of common intention, as per Sanusi CJA thus:

The evidence before the court shows clearly that there was a common intention to cause death or at least to do grievous harm to the two deceased students and therefore the first appellant and the second appellant as well as the third accused person were rightly held liable and convicted by the lower court.

The appellant appealed to the Supreme Court. On whether common intention is capable of positive proof, the Supreme Court held:

The mere fact of the common intention manifesting in the execution of common object is enough to render each of the accused in the group guilty of the offence. Where common intention is established, a fatal blow or gunshots though given by one of the party, is deemed in the eyes of the law to have been given by all those present and participating. The person who actually delivered the fatal blow is, in such a case, no more than the hand by which others also struck. And in practical terms common intention is incapable of positive proof. Its existence can only be inferred from the circumstance disclosed.

On whether there were facts and circumstances from which common intention could be inferred from the case, the Apex Court held:

In this case however there are no facts and circumstances from which common intention could be reasonably be inferred... The clear scenario from the available evidence is that the first appellant took decisions without consulting with the other members of the team but instructed their execution of these decisions...

English and another man were parties in a joint enterprise which was to attack and cause injury with wooden posts to a police officer. But contrary to that common intention, the other man used a knife and stabbed the officer to death. English did not know that the other man was carrying a knife. Nevertheless, he was convicted for murder on the grounds that he realized that there was a substantial risk that the other man might kill or cause really serious injury to the police officer with the wooden post. He appealed against his conviction.

Two questions were formulated in the appeal for the House of Lord, to wit:

1. It is sufficient to found a conviction for murder for a secondary party to a killing to have realized that the primary party might kill with intent to do so or with intent to cause grievous bodily harm or must the secondary party has hold such an intention himself?

2. Is it sufficient for murder that the secondary party intends or foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal act carried out by the primary party is fundamentally different from the acts foreseen or intended by the secondary party?

The House of Lord, per Hutton answered the questions in the affirmative thus:

My Lords, I consider that there is a strong line of authority that where two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of that enterprise.

**

In this case, the accused persons as a result of a feud of land with another party met and agreed to eliminate the deceased so that their family would take over the control of the land. Pursuant to that agreement, they waylaid the deceased and his sister on their way to Ibadan. In the resultant altercation, the deceased and his sister were brutally assaulted with cudgels, cutlasses and sticks and, as a result of the multiple injuries sustained by the deceased from the savage attack, he died in hospital. The trial court did not consider clear evidence of common intention of the parties, instead, the court held that the death of the deceased was accidental. The trial judge therefore convicted the accused person to four and half year's imprisonment for the lesser offence of manslaughter.

On appeal to the Appeal Court, the Appeal Court suo motu raised the issue of proper arraignment under section 215 of the Criminal Procedure Act of Oyo State and declared the conviction and sentence of the accused a nullity as a result of non-compliance with the above section. Adekeye, JCA commenting in a passing on what looked like a consideration of common intention of parties involved in the commission of an offence said:

In the case I have already drawn attention to the inconsistence (sic) finding of facts on the acts of the appellant and the failure of the learned trial judge to properly elucidate on the accidental acts of the appellant and relate same as being the cause of death of the deceased.

Having declared the entire trial a nullity, the Appeal Court discharged and acquitted the accused persons and the Respondent's appeal was allowed. Dissatisfied with the judgment, the State appealed to the Supreme Court. The Apex Court stated the correct principle of the criminal responsibility of persons involved in joint unlawful criminal enterprise as follows:

The evidence before the trial court shows clearly that there was a common intention to cause death or at least to do grievous harm to deceased Agboola Ama. The doctor's opinion was that he died from multiple injuries. The main question here is whose act caused the death of Ama Agboola. The court below held that for the conviction of the respondent to stand, it must be shown that it was his acts that caused the death of the deceased. The curt below in my view was in error. This court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence...It is the law that where two or more persons form a common intention to assault and one of them causes his death while the others are present aiding and abetting the felony, all are guilty of murder.

In the instant case, a lorry driver was driving at great speed on the wrong side of the road. The lorry had a left-hand drive, and the driver's companion was sitting in the right-hand front seat. A cyclist coming along the road was forced into the side of the road where he dismounted. As the lorry careered past, the driver's companion hit out with a stick at the cyclist who fell as a result against the rear of the lorry and was killed. Both men were convicted of manslaughter, but the West African Court of Appeal quashed the driver's conviction. He could only be guilty if it could be shown that it was as a result of concerted action by both men that the cyclist was killed.

In this case, a common design to make an attack of a kind likely to endanger human life resulting in death as a probable consequence could be inferred from the fact that the accused persons were in one canoe shouting a common tribal war-cry. If a man goes out to rob with another whom he knows to be armed, then, in such circumstances, it can fairly be inferred that they intended, if necessary, to use force in affecting the common purpose.

However, in this case, one of a gang set out to steal carrying a machete, but the others were unarmed. The gang were surprised in the act of stealing, and a man who tried to intercept their escape was struck down and killed by the carrier of the machete. They were all convicted of murder, but the appeals of the unarmed member of the gang were allowed because there was evidence that when on the point of setting out, they had warned the carrier of the machete not to use it and had told him that their only purpose in going out was to steal.

In the instant case, the intention of the crowd composed was to kill. The Federal Supreme Court held that:

Any member who joined the crowd with full knowledge of the common intention was equally guilty of the murder of the deceased.

In the above case, the crowd entered a village armed, signing songs, and with some of them saying that if they caught the head of the village, they would kill him. Although, death resulted from the burning of a house. The court held that there was not enough evidence of a common intention against the particular appellants, since the only evidence as that they were amongst the crown. There was nothing to show that they were seen to do anything which contributed to the death of the deceased. Mere presence in this case was not enough to raise a presumption of common intention.

In this case, a man went to a camp in the company of some others to complain to a father that his son, X, had been committing adultery with his wife. All were unarmed and were well received by the father, who was prepared to pay the damages demanded. But X refused to co-operate, and Y supported him. They asked the party to leave the camp, threatening to beat them if they did not. They began to put this threat into operation. Y went into a house, got a machete and aimed a blow at the head of one of the party who managed to ward it off. X then got a stick and hit the same man at the base of the skull and killed him. The trial judge found that the intention of both X and Y was to cause harm to the deceased. The court convicted both of murder as being parties to X's murderous blow. But the West African Court of Appeal allowed Y's appeal. He was, in the court's view, guilty of attempted murder in respect of his own blow with the machete, but he did not have a common intention with X to cause grievous harm. On the evidence, even though the intentions of each accused were to cause grievous harm, they were suddenly formed and formed independently of each other. See also State v. Oshiki* *(1967 68) M.S.N.L.R. 150; Dracaku s/o Afia v. R. (1963) E.A. 363.

For the provision of section 8 of the Criminal Code Act to operate, that is, when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence the common intention must have been that the common purpose should be executed in conjunction with one another. In the instant case, the West African Court of Appeal held that:

Section 8 would not apply for the agreement was one to act severally rather than jointly.

The law in the above cases is that committing an offence in conjunction with one another does not necessarily mean that the actual physical act which is the substance of the offence charged must be done by all. The man who keeps watch outside while murder is committed inside or who restrains the victim while the victim is shot falls within the provision of section 8 of the Criminal Code Act, provided that the common intention was to prosecute the unlawful purpose jointly, it makes no difference that in fact the crime was committed in the prosecution of that purpose in the absence of one or more of the parties.

The court in the above case, held that if there is a common intention to prosecute an unlawful purpose in conjunction one with one another, it not necessary for the application of section 8 of the Criminal Code Act that is:

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

The court held that there should be some element of conjunction in the actual commission of the offence charged as a probable consequence of the prosecution of the unlawful purpose as well as in the prosecution of the unlawful purpose itself.

In the facts of the case, two appellants who ran their pastoral holdings together agreed with each other to increase their herd by stealing unbranded calves from neighbours. This was to be achieved by killing the cows with which they ran. Many carcases of cattle were found on their property. They were charged with killing a particular cow but it was not possible to say which of them had killed it in pursuance of their arrangement to steal calves. The court held that section 8 of the Criminal Code Act applied.

In this case, the declared intention of the society to which the sole prosecution witness belonged was to catch thieves, and to demand money from them. If they failed to pay, they were to be killed. There was no suggestion that the victim in this case was a thief nor was he asked to pay money, yet he was murdered by the society. The prosecution witness took no active part in this killing, and since the killing went beyond the purpose of the society, the court held that he was not an accomplice, therefore, his evidence did not require corroboration.

In the above case, A and O went out to round up thieves. The intention was to shoot thieves if they threatened A and O with a gun. O shot a man in the circumstances which went beyond the prosecution of the common intention. The court held that A was not jointly liable.

The law is that once it is established that the offence committed by one party was a probable consequence of the prosecution of a common unlawful intention between the parties, it becomes of no moment how the offence was actually committed. In the above case, the Privy Council held that it does not matter which of the accused person committed the offence.

The law in these cases is that assistance would be constituted by acts such as helping a party to dispose of a body after a murder, or hiding the deceased's bicycle.

The position of the law at common law is that if a man assists an accessory after the fact, then the man himself may be an accessory if his actions constitute assistance to the principle.

The court in the instant case held that a man is an accessory who makes an omission in order to assist escape.

The mental element required of an accessory after the facts is knowledge of the guilt of the person assisted, inclusive of intention to facilitate escape from punishment. And this must be proved on the pieces of evidence. In the above cases, the court held that the receipt of stolen but almost valueless goods was enough to prove knowledge.

In the instant case, a student was persuaded by his girlfriend to lend his room for an abortion operation. She died as a result and he was charged under section 515 of the Criminal Code Act. The charge did not state the nature of the felony which was to be committed. The evidence did not prove that an abortion had in fact been committed. Nevertheless, the Federal Supreme Court upheld the conviction. The court held that there was no need in the charge to specify the actual felony. The court also held that since the offence consists simply in failing to use all reasonable means to prevent the commission of a felony with knowledge that a person designs to commit, the accused was guilty because he had the requisite knowledge. The court admitted that the word 'design' implies that there must have been a settled intention to commit an offence, and that the best evidence of that intention would be that a felony was actually committed.

The court in this case, held that mere failure to prevent an act without knowledge is not an offence, as where a night watchman is asleep when the goods were stolen.

In this case, D supplied specified drugs on prescription purporting to be signed by a Dr. Ireni. The prescription was forged. There was no finding that D acted dishonestly, improperly or even negligently. So far as appeared, the forgery was sufficient to deceive the pharmacists without any shortcoming on their part. Yet, the House of Lords held that the Divisional Court was right to direct the Magistrate to convict.

In the case above, D was acquitted of permitting a vehicle not displacing a current warrant of fitness to be on the highways when the warrant was detached during his absence. The court took the view that there was an actus reus but that D had not caused it and he was not liable even if the offence was one of strict liability.

In this case, the chairman of a newspaper was held vicariously liable for a seditious article: he did not give express instructions to the editor against publication of the newspaper.

In this case, the contention was that writing is blasphemous when it has the tendency to shock and outrage Christian. The majority in the House of Lords decided that it was not necessary to prove that the accused was aware of this tendency. What is required, according to the decision, is that there was 'intentional use of words which in fact, are likely to shock and outrage'.

In the instant case, D was found guilty of having in his possession adulterated tobacco. The prosecution argued that the purpose of the statute was for the protection of the revenue. He also drew attention the absence of 'knowingly' or any similar word from the statute. Parks B was of the opinion that the prosecution would very rarely be able to prove knowledge, and that the public inconvenience which will follow if they were required to do so would be greater than the injustice to the individual if they were not. Even the exercise of reasonable care would not have saved D. He was liable even if the adulteration was discoverable only by a nice chemical analysis.

In the case above, the plaintiff, a butcher, was suing for compensation for certain unsound meat which had been destroyed under the Public Health Act 1875. The Act provides that, where any person sustained damage in relation to any matter as to which he was not himself default, full compensation should be paid. In answering the question whether the plaintiff was in default, taking into consideration that he was unaware and could not discover by an examination which he could reasonably be expected to make, that the meat was unsound, the Appeal Court reversing channel J that the plaintiff was in default because he was guilty of the crime of selling unsound meat, Kennedy L.J. said:

The clear object, the important object (of the stature)...is as far as possible to protect the buyer of that which, in the opinion at all events of most people, is a necessity of human life, from buying and consuming meat that is unwholesome and unfit for the food of man and I should say that the natural inference from the stature and its object is that the peril to the butcher from innocently selling unsound meat is deemed by the legislature to be much less than the peril to the public which would follow from necessity of proving in each case a mens rea.

The House of Lords in the instant case held that:

*...wherever a section is silent as to mens rea, there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require men rea' ...it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.
*

In the instant case, the court held that using a vehicle in contravention of a regulation (in that it had a defective breaking system) was an offence of strict liability, but D was charged with permitting the use which, said the court, 'in our opinion at once imports a state of mind.'

The offence of permitting a vehicle to be used without insurance is committed by a person who is uninsured. In this case, D who says 'Here is my car, but you must not drive it until you have insurance,' was taken to permit what he actually forbid, driving without insurance.

In the case above, a company was charged with permitting one of its Lorries to be used for the carrying of passengers contrary to Regulations. But they were acquitted because liability was held not to be strict. The court was of the opinion that the company could only have been found guilty:

(a) If it knew that the carrying of passengers was a likely consequence of its motor vehicles being used on the highway and yet continued to allow them on the road without taking adequate steps to prevent passengers being carried. In other words, if it shut its eyes to the possibility of an offence being committed.

(b) Where the statute used the word 'knowledge', it means that Parliament explicitly makes mens rea a constituent element of the offence.

In this case, the court held that D does not 'willfully' obstruct the officer simply because he does a deliberate act which in fact obstructs the officer. An intention to obstruct must be proved.

In the instant case, the word 'willfully' in a statute was said to import mens rea.

The word 'willfully' was said to govern the whole definition of the offence and thus to require knowledge of all the facts constituting it as was held in the above case.

In this case however, the accused persons were charged of willfully publishing false or perverted report of any debate or proceeding of the House. '...The publication was intention, although the prosecution did not lead evidence to show that they knew that the publication was false.' The court based the conviction of the accused persons on the ground that it was sufficient that they had made no attempts to ascertain whether the report was true or false.

The court held in this case that 'willfully' in section 1 of the Children and Young Persons Act 1993 was not to be limited to requiring an intention to do one of the physical acts described in the section (assault, ill-treat but unnecessary suffering or injury to health).

In this case, D was charged with supplying liquor to a constable on duty, contrary to section 16(2) of the Licensing Act 1872. The policeman was not wearing his armlet, it was admitted, was an indication that he was off duty. D, who was in the habit quite lawfully of serving constables in uniform but without their armlets, made no enquiry and took it for granted that the policeman was off duty. Section 16(2) prohibits a publican to harbor or suffer to remain on his premises any constable on duty. Section 16(2) did not include the word 'knowingly'. Yet D's conviction was quashed. Day J said that the only inference to be drawn was that under section 16(1), the prosecution had to prove knowledge, which under section 16(2) the defendant had to prove he had no knowledge. Wright J pointed out that:

If guilty knowledge is not necessary, no care on the part of the publican could save him from conviction. Since it would be as easy for the constable to deny that he was on duty when asked, or produce a forged permission from his office as to remove his armlet before entering the public house.

The court pointed out in the instant case that:

Where the subject matter of the statute is the regulation for the public welfare of a particular activity -- statutes regulating the sale of food and drink are to be found among the earliest examples -- it can be and frequently has been inferred that the legislature intended that such activities should be carried out under condition of strict liability. The presumption is that the statute of statutory instrument can be effectively enforced for seeing that they are complied with... Thus, sellers of meat may be responsible for seeing that the meat is fit for human consumption and it is no answer for them to say that they were not aware that it was prohibited.

The accused person in this case, induced an abortion on a female about 22 weeks pregnant as a result of which the baby was born alive but died about two hours later. Medical evidence showed that the child had no prospect of continued survival because of the stage of its development and its weight. On a charge of manslaughter, the accused argued that section 292 of the Queensland Criminal Code (section 307 of the Criminal Code Act) must be construed as referring to as capable of living. Rejecting the argument, the court held that a child who lives, albeit doomed to die, for some period after it has proceeded from the body of its mother falls within the section. The court observed, however, that it was a most unusual indictment for manslaughter; it was a very strong case of abortion and the accused should have been charged with that offence rather than with manslaughter.

The accused person in the above case, inflicted injuries upon his deceased child in separate incidents in November 1906 and November 1907. The judge directed the jury that they could find the accused guilty if they considered death to have been caused by the injuries inflicted in November 1906. The Court of Criminal Appeal held that the accused could only be convicted of manslaughter if it was established that the injuries inflicted in December 1907 were a substantial cause of the child's death. The court set aside the conviction: 'it is still undoubtedly the law of the land that no person can be convicted of manslaughter where the death does not occur within a year and a day after the injury as inflicted, for in that event, it must be attributed to some other cause.'

In this case, the Supreme Court of Pennsylvania held that the year and a day rule was not more than a rule of evidence of procedure only and might therefore be displaced by adequate proof of causation.

The position of the law in the instant case is that if a child dies in consequence of an act done or omitted to be done by any person before or during the birth of the child, the person who did or omitted to do such act is deemed to have killed the child.

The position of the law in the case above is that where a victim's death is traceable to the injury inflicted by the accused person, there is no defence for the accused person to show that the deceased might have avoided the injury by proper precaution or that his death from the injury might have been prevented by proper care or treatment.

In this case, the accused person injured A's finger. In spite of a strong recommendation by a surgeon that the finger should be amputated, A refused to have the finger amputated. Lockjaw set in and when the finger was amputated, it was too late, and A died from lockjaw. On a charge of murder, the accused argued that A's refusal to allow amputation of the finger was the cause of death. The accused was convicted of murder because the wound inflicted by him was the cause of A's death.

The appellant in the above case, inflicted four stab wounds on the deceased person, one of which pierced her lungs. She was told in the hospital that she needed a blood transfusion to save her life. She firmly refused on religious grounds, being a Jehovah's Witness. She died the next day as a result of bleeding into the pleural cavity arising from the lung injury. The appellant was convicted of manslaughter. He appealed, arguing that the deceased's refusal to have a blood transfusion was not reasonable and had broken the chain of causation. The Court of Appeal (Criminal Division) upheld the conviction because the trial judge was entitled, on the facts, to tell the jury that the stab wound was an operative cause of death. Lawton L.J. observed that:

It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.

In this case, D in a fight, struck V on the head with a shovel, inflicting a serious wound on V's head. V died in a hospital nine days later. According to medical evidence, the primary cause was tetanus. The doctor stated that tetanus injection was not given to V after proper dressing the wound. The High Court held that V's death was caused by D notwithstanding the intervening incident of tetanus. The Appeal Court held that the negligence of the doctors who attended to V in failing to administer tetanus injection was a new intervening cause which broke the chain of causation. The wound inflicted by D was not, therefore, the cause of V's death. The court preferred the proviso to section 313 to the provision of section 312 of the Criminal Code Act because the treatment administered to V was not reasonably proper in the circumstances.

In this case, the accused person stabbed the deceased twice and it was proved that the stabs were in the stomach and back and the deceased died two days after receiving the injuries. There was not medical evidence as to the cause of death. The court held that it was proper for the court to infer the cause of death from the circumstances of the case. The court said:

Cases frequently occur, here and elsewhere, in which the court is asked to infer the cause of death from the circumstances, because of the lack of medical evidence, and in cases such as this it is perfectly proper to do so.

The deceased in the case above, having received a mortal gunshot wound from which he would have died within the hour, cut his throat and died within five minutes. The court held the accused person liable for manslaughter on the premise that the original would was an operating manslaughter and operating cause. The court further held that:

Here, when the throat was cut, (the deceased) was not merely languishing from a mortal would, he was actually dying, and after the throat was cut, he continued to languish from both wounds. Drop by drop, the life current went out from both wounds, and at the very instant of death, the gunshot wound was contributing to the event.

In this case, a hospital consultant was convicted at Winchester Crown Court of attempting to murder a patient dying of rheumatoid arthritis. He was found guilty of administering a lethal injection of potassium chloride to the patient whose agony had become so appalling that not even near lethal doses of heroin could keep the pain at bay.

The English Court of Appeal (Criminal Division) in this case, held that a duty of care was cast upon the appellants when the deceased who was living with them became sick and unable to look after herself and that it was not necessary for a conviction for manslaughter that the appellants should foresee the likelihood or possibility of death or serious injury.

In the instant case, H and W lived in a city with the deceased person, a girl of fourteen years who was H's daughter by a former wife. They subsequently went to live in a very lonely part of the country where there were scarcely any visitors. They made the deceased girl do most of the household duties. The deceased girl was badly fed and poorly clothed even in winter. The deceased was a robust and healthy girl when she arrived in the new place but she died a few month afterward under the most pitiable circumstances. Her condition is best described in the words of Cooper, C.J., thus:

My chief difficulty in this case has been my judgment unbiased by the feeling of sympathy with this unhappy child in her trials during last months of her life. Never seeing any children of her own age, or any visitors, living in a lonely house in the bush, far from any other habitation, with her father and stepmother, both of whom were suspicious and unsympathetic, covered with sores, neglected, locked out from the storeroom where the food was kept, placed in such circumstances that she stole food, as the prisoners allege, whenever she could, and drank the milk intended for a dog, harried to work when any movement must have caused considerable pain, she was indeed a pitiable object. The picture of this helpless child attending to her own sores and binding up her decaying wrist, apparently to save the bones that were dropping away, is one that in pathos and horror is unparalleled in fiction.

It was found that H and W had charge of the girl, that she was unable to withdraw herself from such charge and unable, from want of opportunity, to provide herself with the necessaries of life. The appellants had failed to provide medical aid for the girl even though there were two doctors resident only fourteen miles from the appellants' abode and W had in fact on a former occasion, taken one of her children when ill, to one of the doctors. The court held that by this neglect, the appellants intended to kill the girl and they were convicted of wilful murder.

In these cases, the law is that if death does not result as a result of omissions to provide necessaries, the accused person may be charged under section 339 or 340 of the Criminal Code.

The position of the law is that it is the duty of every person who, as the head of a family, has charge of child under the age of 14 years, being a member of his household, to provide the necessaries of life for such a child. Where the person fails so to do, he would be held to have caused any consequences which may result to the life or health of that child by reason of such failure and/or omission to perform that duty, whether the child is helpless or not. In the instant case, a parent who belonged to a religious sect which denied medical aid to sick people failed to provide medical attention for his sick. The court convicted the accused for manslaughter.

In the instant case, the couple, Walter Gibbons and Edith Proctor were living together with Gibbon's daughter, Nelly, who was seven years old with the other children. The children were healthy except Nelly, who was kept upstairs apart from the others and was starved to death. There was evidence that Proctor hated Nelly and cursed and hit her, from which the injury could infer that she had a very strong interest in Nelly's death. Gibbons was in regular employment, earning good wages, all of which he gave to Proctor. According to Gibbons's Counsel, it was his duty to provide the money; it was Proctor's to provide the food. When Nelly died, Proctor told Gibbons to bury her out of sight which Gibbons did, in the brickyard where he worked. Gibbons and Proctor were tried together and convicted of murder of Nelly. They appealed against their conviction, inter alia, on the ground of misdirection. The court dismissed their appeal and held them liable for murder as a result of their failure to supply necessaries of life for the child.

In this case, an Engineer who left the coalmine unattended, leaving behind dangerous machinery that was unskillfully operated by an unauthorized person was held responsible for the result injury to the other employees. The actus reus in this case is the omission to perform that duty.

In this case, the appellant, a police officer attached to the Mobile Unit of the Nigerian Police Force was convicted for murder by the trial court. The appellant appealed to the Court of Appeal against his conviction. The Court of Appeal found that there was no dispute that the appellant was engaged in lawful duty, and was doing a lawful act, a check point duty, which is on the face of it dangerous to human life. The Appeal Court thereupon posed to itself the question whether the law in Nigeria imposes any duty on person doing such dangerous act? If so, what is the penalty for a breach of such duty on persons doing such acts? The Appeal Court placed reliance on section 303 of the Criminal Code in resolving such a problem. The Appeal Court was of the opinion that, based on that section and coupled with the appellant's admission that he was shooting at the tyres of the vehicle when the incident occurred, it is clear that his failure to use reasonable care in carrying out his duty lawfully has brought his act within the ambit of section 306 of the Criminal Code dealing with unlawful killing.

The Appeal Court therefore applied the provisions of section 237 of the Criminal Code and held that the killing of the deceased does not amount to murder, but manslaughter. The Supreme Court arrived at the same conclusion with the Appeal Court, although, their reasoning was slightly different on whether the act of the appellant was consistent with the provisions of sections 303 and 306 of the Criminal code. The Apex Court held as per K.G. Karibi-Whyte, thus:

"I think it is appropriate in case of a member of the Mobile Police Unit, to equate his duty of checking motorists on the road as dangerous to life. Not so operation of the gun and the ordinary exercise of his skill."

In the above case, the Supreme Court considered the test what is unlawful and dangerous where it held that:

"The test as to what is unlawful and dangerous does not depend on the knowledge or thinking of the accused. It is based on the objective test, that is, what a reasonable person would describe as unlawful and dangerous."

In this case, the driver of a car fell asleep and lost control of his car which collided with three persons and killed them. On a charge of manslaughter, the Court of Criminal Appeal considered the meaning of the expression, 'reasonable care and reasonable precautions' which are contained in section 289 of the Queensland Code (similar to section 304 of the Nigerian Code). The court held by a majority that the two expressions should be given the well-established meaning given to them by judges expounding the common law and that the distinction at common law between civil and criminal negligence has been maintained in Queensland, notwithstanding the enactment of the Code.

In the above case, the court said that:

...the expression 'omission to perform the duty to use reasonable care and take reasonable precautions'...must be regarded from the point of view of the context where it occurs. It is in a Criminal Code dealing with major crimes involving grave moral guilt. Without in any way denying the difficulties created by the text of the Criminal Code, we think it would be wrong to supposes that it was intended by the Code, to make the degree of negligence punishable as manslaughter as low as the standard of fault sufficient to give rise to civil liability.

The law is that the burden of proving the cause of the death of the deceased person is on the prosecution. If a person attacks another with a lethal weapon and the person dies on the spot, inference can be drawn that the injury caused the death of the deceased.

In the instant case the accused person administered an injection to the deceased person who died as a result of an infection which could have been caused by the injection or by germs on the body of the deceased. Because it was not shown how the infection was caused, the court held that the cause of death was not proved. See also R. v. Gyan (1954) 14 W.A.C.A. 412; R. v. Abengowe (1936) 3 W.A.C.A. 85; Ugwu v. State (2002) 10 NSCRR [Pt. 1] 37.

The Federal Supreme Court in the above case, held that where it is proved that the accused person beat the deceased person with a stick and left him on the ground injured, that the deceased was then taken to the hospital where he died after two days' illness, it is not sufficient proof that the accused person caused the death of the deceased. This is because it has not been shown that the deceased died of injuries inflicted by the accused person. See also R. v. Owe (1961) All N.L.R. 680; Onyenankeya v. State (1964) 1 All N.L.R. 151; State v. Osuagwu (1974) 4 E.C.S.L.R. 358.

The position of the law is that where from the nature of the wound and the circumstances of the case the inference is strong and compelling as to the cause of death, the court is at liberty to draw that inference. The court in this case held that on a charge of attempted murder, the court may, having regard to the nature of the wound inflicted, infer that the intention was to kill.

It was decided by the court in the case above that if the medical evidence merely provides alternative possibilities as to the cause of death and there is no evidence to enable the court choose between the medical evidence, then the cause of death is not proved.

In the instant case, the position of the law is that to establish that D killed V, the prosecution may rely, inter alia, on circumstantial evidence, but the circumstantial evidence must be cogent, strong, positive, direct and compelling as to lead to the irresistible conclusion that D, and no other person killed V.

In this case, the fact that D was the last to see his wife alive, that he dumped her corpse under a culvert and told lies to his wife's parents and relations over the wife's whereabouts for about seven months, that medical evidence showed that his wife aged between eleven and thirteen years died of strangulation were sufficient circumstances to show that he killed the wife.

The appellant in the above case, was convicted of murder. The evidence showed that on a particular day, he was found lying on the deceased on the ground and when he was removed from that position, a knife was found in his hand and stab wounds were seen on the neck of the deceased person who shouted 'Izobo is killing me'. When confronted by one of the witnesses, the appellant said the deceased was worrying him and that he was willing to die with him. There was medical evidence which described the nature of the wound, but the evidence was in want of the fact that the deceased died as a result of such wounding.

The Supreme Court, per Tailor, F. held that:

As there was no evidence before the trial court that the death was caused by the act of the appellant, the conviction of murder was not sustainable on appeal. The finding that the appellant intended to kill the deceased was supported by evidence. Having intent to kill when he assaulted and wounded the deceased, the appellant was guilty of attempted murder...

The position of the law in the above case is that intent to cause grievous bodily harm though sufficient to ground a conviction for murder if death should result, it is however, not sufficient to secure a conviction for attempted murder.

The appellant in this case, threw a plier at the deceased person in the course of a fight after the fight had been on for some time. The plier hit the deceased on his head and he fell down and fainted. The deceased shortly died. The Supreme Court in squashing the appellant's conviction for murder and substituting it to manslaughter said:

It is therefore doubtless that the Appellant could not have been properly convicted for murder in the circumstances when as found by the lower courts the appellant neither intended to cause death nor to cause the deceased grievous harm. It must be grievous harm and not just harm, that must been intended before a charge of murder can be sustained.

The law is that on a charge of murder, the fact that the corpse of the deceased person is not found is immaterial. This is because death is a fact which can be proved by circumstantial evidence. But in proving death by circumstantial evidence, such evidence must render the commission of the crime certain.

The accused persons in the case above, killed the deceased and threw his body into a river. The body was never found. There was only one eye witness. The Supreme Court upheld the conviction for murder because the evidence was strong, cogent and led to the irresistible conclusion that the deceased did not only die, but that the deceased was killed by the accused person.

The position of the law in the above case is that if a man is violently assaulted and/or attacked by another person and 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 the person attacked and/or assaulted to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

The law in the instant case is that provided that there is reasonable apprehension of death or grievous bodily harm from the assailant, the person attacked does not need to wait to be injured and/or hit before acting in self-defence.

The position of the law in this case is that where the person attacked is acting in self-defence and accidently and/or mistakenly kills another person other than the assailant, the homicide is excusable.

In the case above, D was swinging a knife to word off an attack by who was armed with a broken bottle and V fell on the knife sustaining a fatal injury. The court held that V's death was an accident.

It was the decision of the court in the instant case that whenever self-defence is hinged on a charge of murder, it is necessary to show that the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous harm.

The court in this case held that the defence of self-defence was not open to an abnormally nervous or excitable person, who on being assailed by a comparatively minor assault, or an assault of any nature which falls short of that which is described in section 286 of the Criminal Code, unreasonably believes that he is in danger of death or grievous harm.

The court in the above case held that the test of reasonableness of belief is objective.

The decision of the court in this case is that the court in considering whether the assault is such as to cause a reasonable apprehension of death or grievous harm, the court must take into account the nature of the weapon used and the disparity in strength between the assailant and the defender.

In this case, the deceased carried a matchet and pursued the accused person. The accused disarmed the deceased and pushed the deceased to the ground. There was no injury on the accused but the accused killed the deceased with the deceased's weapon. The court held that the accused person had a good defence under section 286 of the Criminal Code Act. This is because the accused reasonably believed that the deceased intended to kill him and in the heat of the moment, he may well have thought, and indeed not without reason, that he was engaged in a life and death fight with the deceased. And if he could not kill the deceased, he would be killed by the deceased person.

The decision of the court in the above is that proper account of evidence of previous enmities, threats and assaults must be taken, although the instant assault standing alone may not be considered sufficient to cause a reasonable apprehension of death or grievous harm, yet when considered in relation to previous enmities, threats and assaults, it may do so.

The decision of the court in the above cases on the requirement of retreat by the person attacked is that there is no rule that the person threatened must run away if he can. It is sufficient if the person attacked demonstrates by his actions that he does not want to fight; that he is prepared to temporize and disengage and perhaps, to make some physical withdrawal. His failure to do so is only an element in the consideration on which the reasonableness of his conduct is to be judged.

The court in the instant case, decided that for self-defence to succeed, there must be no safe or reasonable mode of escape by retreat.

The position of the law in this case is that where two people are fighting and one kills the other, the killing is unlawful, and such killing is at least, manslaughter.

The law in the above cases is that the accused person may raise the defence of self-defence where it is relevant. But where he did not raise it and the evidence before the court discloses a possible issue of self-defence, the burden of proof would be on the prosecution throughout and it is not at any time on the accused to establish the defence.

It is the law that where a defence is raised by an accused person, the court is duty bound to consider such defence adequately.

The decision of the court in this case is that where the court is in doubt as to whether the accused person was acting in self-defence, the court would acquit the accused.

By virtue of the provision of section 288 of the Criminal Code Act, and in the cases above, the law is that whenever it is lawful for any person to use force in any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of forced for the purpose of defending the person assaulted.

The court held in the instant case that aiding in self-defence was available for the accused person, who having observed the deceased inflict a fatal machete, snatched the machete from the deceased and killed the deceased.

In this case, a policeman shot and killed a mad man who, armed with a machete, had gone berserk and attacked people injuring them. The court held that the defence in aiding of self-defence availed the policeman.

The court has decided in the instant case that where the aiding in self-defence occurs when the assault has ceased and/or stopped, the defence would no longer be available for the aider.

In this case, the accused person had almost completed a very nice building in a town when fighting broke out between two sections of the community. The accused had nothing to do with the quarrel. In a riot which followed, his house was almost completely ruined. The accused moved some things to a neighbor's house and when he came next day either to remove the remaining things or to see what was happening to the house, the riot was resumed. Stones were thrown at his house resulting in further damage to the house. At first, the accused remained within the house, but after a time, being exasperated, he took his brother's gun, fired at the crowd and killed someone. On a charge of murder, the court held that the accused person was entitled to be acquitted on the premise that the killing was justifiable in the defence of his property against the felonious attempt to destroy it.

Death by misadventure occurs where a person kills another in purely accidental circumstances without intending to cause death or grievous harm and without gross negligence. This kind of death is excusable as was decided by the court in the above case.

The decision of the court in the above cases is that where a person is effecting an arrest on someone and the arrest is not lawful, the person sought to be arrested may use force to protect his liberty. If the person sought to be arrested uses force in excess of what is reasonable and death occurs, such killing would amount to manslaughter.

The position of the law in the cases above is that there is no law which authorizes the killing of a person because he is a notorious thief or because the person is caught stealing.

The law in this case is that where the thief uses force to resist an arrest, it may be lawful to kill him provided the conduct is reasonable under the circumstances. See also State v. Okere* *(1970) 2 All N.L.R. 279, (1943) 9 W.A.C.A. 61.

In the instant case, the accused person was awakened by the hue and cry of villagers who were pursuing a suspected thief at night. Emerging from his house with a gun, the accused saw a man running towards him, chased by a crowd, a man whom the accused suspected of being an armed and escaping thief. The accused person fired at the man and killed the man. It happened that the man was not a thief. The court held that the offence of the accused was manslaughter and not murder.

In this case, the accused person found his neighbour in his barn at night. The accused wrongly believed the neighbour to be a thief, he stabbed him in the stomach and he died. The accused was convicted of murder because he dealt the blow with the intention to kill or cause grievous harm.

A member of a night guard killed a notorious thief whom they alleged was carrying stolen goods and was armed. The court convicting of manslaughter, pointed out that the verdict would have been murder but for the fact that the evidence of deliberate killing was not clearly established.

By virtue of the provision of section 281 of the Criminal Code, a killing will be justifiable under this section where the offence sought to be prevented involves the risk of death to some person, i.e. for the preservation of an offence in relation to property.

In this case, the accused person, a native doctor, prepared some charms for the deceased. The deceased then invited the accused to test the charms on him by firing a shot at him. The accused shot him in the chest and killed him. He was convicted. The court expressed its view that a person's consent to his death may affect criminal responsibility so as to reduce the offence from murder to manslaughter.

After the loss of a local council election by A's cousin in the instant case, A was provoked by abusive songs against his family. He lost his self-control and killed one of the singers with a machete. The post-mortem examination revealed that the deceased has about ten severe wounds. The court holding that the defence of provocation raised by the accused person would not avail him, pointed out that the injuries inflicted on the deceased person were severe and the weapons used was such that the mode of retaliation was out of all proportion to whatever the deceased said or did to A.

The principle of proportionality to the degree of retaliation given is not specifically provided for in the Code but it was imported from English law. In the above case, the Privy Council held that the principle was part of the law of Ceylon even though he Code does not mention it.

The appellant in this case, was attacked by three persons of whom the deceased person was one of the attackers. The appellant inflicted four blows on the deceased and she die. The trial judge found that the sudden attack on the appellant would cause a reasonable person of the appellant's standing in life considerable anger and cause him to strike the deceased once, but that it did not excuse his continuing to deal death blows on the deceased then incapacitated, for the second, third and fourth times in quick succession. The Federal Supreme Court, disagreeing and finding the provocation proved, pointed out that the finding of the trial judge implied that there was time for the appellant's passion to cool between the infliction of the first and other injuries. "We are unable to agree. All four blows were delivered within a matter of seconds of each other and if the first blow was, as the learned judge found, given in the heat of passion caused by sudden provocation, we cannot see how the other blows can be treated differently.

HOLMES V. D.P.P.

(1946) A.C. 588, 75

Nature of provocation: Whether words can amount to provocation

Provocation may be by words or deed. The old common law rule was that words alone could not be sufficient provocation to reduce murder to manslaughter. This rule was however modified in the above case where the court held that words alone could not amount to provocation save in circumstances of a most extreme and exceptional character.

The position of the law with respect to provocation is that words alone can amount to provocation sufficient to reduce murder to manslaughter. The Federal Supreme Court in the instant case, held that:

We do not, however, agree with the learned trial judge that words alone can never constitute such provocation as to reduce an offence from murder to manslaughter.

The court in this case, held that a mere confession of adultery without more is not sufficient to reduce murder to manslaughter.

However, the court in this case, held that there was sufficient provocation to reduce the offence from murder to manslaughter where a wife jeered at her husband who was an illiterate and primitive peasant, taunted the husband of being impotent, and told him that she was having sexual connection with other man.

The decision of the court in the instant case is that taunt of impotence and a slap by W amounts to sufficient provocation.

In the instant cases, the law is that if a person is charged with attempted murder, the prosecution must prove an intent to kill, and not merely an intent to do grievous harm. Although, if death results from grievous harm which is caused intentionally, it is murder.

In this case, two accused person had inflicted separate wounds but only the wound inflicted by the first accused person caused death. The West African Court of Appeal said that:

The intention of both accused persons was the same, each to cause grievous harm.

Later, the court said:

On the finding of the court below that the second accused himself had the intention of causing and did cause grievous harm to the deceased, and it is merely fortuitous that the blow he delivered was not a mortal one, we substitute for the conviction of murder a conviction of attempted murder.

In the above case, the position of the law is that if more than one intent may be inferred from the accused person's act, for instance, an intent to kill or an intent merely to frighten, then the onus remains on the prosecution to prove the specific intent to kill.

It is the law that failure by a trial judge to direct his mind to the question whether an intent to kill has been proved amounts to a misdirection.

The law is that on a charge of murder, an accused person may be convicted of attempted murder. The accused person in this case, intended to kill the deceased. He inflicted stab wounds on the deceased neck and stomach and the deceased died. The accused was charged with murder but no evidence was adduced to show that the deceased died as a result of the wounds. The conviction of the accused for murder was quashed and a conviction of attempt to murder was substituted.

In this case, the accused person was charged with the offence of culpable homicide punishable with death under section 221 of the Penal Code because he intentionally killed the deceased person. The facts of this case was that the accused person lured the deceased person and one other person, who testified at the trial court as PW1 to follow him to picnic at Baguada Hotel, Kano. They started the journey in the accused's car. On their way, the accused pretended that he wanted to ease himself. They deceased and PW1 decided to do same. As they were easing themselves, the accused re-entered his car, started it and drove it towards the deceased whom he knocked down and ran over. The accused person further engaged his reverse gear and with a reverse movement, for the second time, ran over the body of the deceased. PW1 was present at the scene of the incident, but he was severely warned by the accused person who threatened to kill him if he dare reveal to anyone that he killed the deceased. The matter was reported to the police 9 months when PW1 started having fearful and terrible nightmares which seriously affected his health. After the conclusion of trial, the accused was convicted. On appeal against conviction, the Appeal Court affirmed his conviction. On further appeal to the Supreme Court, the appellant formulated four issues for determination, one of which was whether the incident was an accident. The Apex Court held, as per Iguh, J.S.C that:

In the present case, the evidence accepted by the trial court is that the appellant lured the deceased out of his car and intentionally knocked him with his car, ran over him, engaged his reverse gear and, for a second time, ran over him once more in an obvious bid to ensure that the deceased was stoned dead. Indeed the deceased, as a result got stone dead at the scene of crime. Thereafter, the appellant dumped his dead body into a pond. In my view, the cause of death of the deceased in these circumstances is crystal clear and it will be idle to seek for any medical evidence to establish that the death of the deceased resulted from the direct brutal acts of the appellant as above described.

The Supreme Court in the above case, has held, on the meaning of intention that in a charge of murder, the prosecution in discharging the burden on it to prove its case beyond reasonable doubt must prove the following:

(a) The death of the deceased;

(b) The act or omission of the accused which caused the death of the deceased; and

(c) The act or omission of the accused as in (b) above was intentional with knowledge that death or grievous bodily harm was its probable consequences.

The Apex Court further held in the instant case on when inference of criminal intention to murder will be drawn thus:

It can be inferred that the 'beating' of a deceased with a lethal weapon is intended by the perpetrator to kill the deceased or inflict grievous bodily harm. This is because the law is that a person intends the natural consequences of his conduct.

In this case, the appellant was convicted on a charge of murder under section 316(2) of the Criminal Code and sentenced to death. The conviction and sentence of the appellant was based on the evidence of the 5 and 7 witnesses for the Crown to the effect that the deceases was seen struggling with the appellant over the possession of a basket of palm fruits, during which the appellant struck the deceased twice on the stomach with a stick. The deceased died almost at once. A postmortem examination conducted by the medical officer of the hospital where the deceased died showed that the cause of the death was due to the rupture of the deceased's spleen. During cross-examination of the medical doctor at the trial of the appellant, no question was put to him as to the probability of the effect of such blows delivered to the deceased by the appellant would have on a person who had not an enlarged spleen. Questions were not also asked to the medical doctor to elicit whether such blows would in normal circumstances cause grievous bodily harm. These constituted the ground of the appellant's counsel argument. The Supreme Court, as per Ademola, J.F. held thus:

(1) To support a conviction of murder under section 316 of the Criminal Code, there must be evidence of either:

(a) An intention to kill or

(b) An intention to cause grievous harm

(2) There was no evidence before the court of an intention to kill the accused.

(3) The evidence led in the trial court was insufficient to show an intention to do grievous harm; since in the circumstances, a reasonable man could not have foreseen that the blows inflicted could have caused such harm.

In the above case, H intended to kill his wife, W, who was carrying their baby on her back. H pursued his wife and inflicted machete cuts on her back. The child fell and died of head injuries. The court held that H has committed the offence of murder.

The law in the instant case is that if D is provoked by B and accidentally kills V, the offence is manslaughter.

The position of the law in this case is that if intention to cause death or grievous bodily harm is not proved, the offence is not murder but may be manslaughter.

In proving intent to commit murder, the onus is on the prosecution. It may rely on the presumption that a man intends the natural consequence of his act as was decided by the court in this case.

However, as was decided by the court in the instant case, the law is that it is for the accused person to show that death occurred in purely accidental circumstances and he had no intent to kill or cause grievous harm to any person. A court may consider the nature of the weapon used and the part of the body aimed at.

The court in this case, held that a police man who fired a shot into a crowd had an intention to kill.

The accused person in this case, was rejected by her lover who began to pay his respects to another woman. At about 2 a.m., the accused was driven by jealousy to set fire to the house in which the other woman lived with her three children. Two of the children were burnt to death. The House of Lords in convicting the accused for murder, held that an "intention" to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it would result in the death or grievous bodily harm to the victim, even though the accused did not desire that result.

The court held in this case that evidence of motive is not an essential ingredient in a case of murder.

However, the court in this case, held that if motive is proved, it strengthens the case for the prosecution.

In the instant case, the patient was seriously injured. His lungs were crushed and punctured and the supply of oxygen to the brain was interrupted. The result of this was catastrophic and the consequence was an irreparable damage done to the higher centers of the brain which had left him since April, 1989 in a condition known as a persistent vegetative state (P.V.S.). In the medical parlance, there was unanimity of opinion, based on the diagnosis and prognosis, that there was no hope of improvement in his condition or recovery. With the concurrence of his family and the consultant in charge of his case and the support of independent physicians, the authority responsible for the hospital where he was being treated as plaintiffs in the action, sought declarations that they might:

(i) Lawfully discontinue all life-sustaining and medical support measure designed to keep the patient alive in his persistent vegetative state including the termination of ventilation, nutrition and hydration by artificial means; and

(ii) Lawfully discontinue and thereafter need not furnish medical treatment to the patient except for the sole purpose of enabling the patient end his life and die peacefully with the greatest dignity and the least pain, suffering and distress.

Sir Stephen Brown P. granted the declaration sought. On appeal by the official solicitor, the Appeal Court upheld the President's order. The court dismissing the appeal, held that:

The object of medical treatment and care was to benefit the patient, but since a large body of informed and responsible medical opinion was of the view that existence in the persistent vegetative state, was not a benefit to the patient, the principle of the sanctity of life, which was not absolute, was not violated by ceasing to give medical treatment and care involving invasive manipulation of the patient's body, to which he has not consented and which conferred no benefit upon him to a persistent vegetative state patient who had been in that state for over three years; that the doctors responsible for the patient's treatment were neither under a duty, nor (per Lord Browne -- Wilkinson) entitled, to continue such medical care; that since the time had come when the patient had not further interest in being kept alive, the necessity to do so, created by his inability to make a choice, and the justification for the invasive care and treatment had gone; and that, accordingly, the omission to perform what had previously been a duty would no longer be unlawful.

In the instant case, the Supreme Court held that the expression "in the prosecution of", means "in furtherance of."

In the case above, the court held that there was no distinction between a preparation to prosecute an unlawful purpose and an actual prosecution of the purpose.

The law in the instant case is that a distinction may be drawn between prosecuting an unlawful purpose (covered by section 316(3) of the Criminal Code, and prosecuting a lawful purpose with a degree of carelessness which the criminal law punishes as manslaughter.

In this case, a fight ensued between the deceased woman and another woman. The accused who along with the two women lived in the same house then proceed to punch the deceased. They followed the deceased to her room where she had retreated, threw her on the bed and continued to punch her thereby inflicting severe injuries on her from which she subsequently died in the hospital. The accused person was charged with murder and the trial judge in directing the jury, treated the case as one which they could find the accused guilty of murder under either section 302(1) or section 302(2) of the Queensland Code, the provisions which are similar to section 316(2) and section 316(3) respectively of the Nigerian Criminal Code.

The accused was convicted of murder. The accused appealed against her conviction on the premise of misdirection, contending that the act which causes death must be something other than the act which constitutes the unlawful purpose. The accused contended that since this was not so in the present case. A finding of guilty under section 302(2) was erroneous. The High Court of Australia in upholding the appellant's contention said:

In our opinion, the second case or paragraph of section 302 had no application to the facts of the present case and the direction was erroneous. The paragraph relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful. The direction appears to be founded on the view that the assault on the deceased woman constituted at once the unlawful purpose and the dangerous acts.

The two accused persons in the case above, caused the death of a pregnant woman while trying to abort her. They had introduced into her vagina a liquid produced by boiling a mixture of Glycerine, Dettol and Sur f. The liquid caused the woman to die. The Court of Criminal Appeal for Queensland in distinguishing the case of R. v. Hughes held that section 302(2) of the Queensland Criminal Code applied because the act and the purpose were different things. The unlawful purpose was to abort the woman and the dangerous act was the act of introducing into her vagina a noxious substance.

In this case, the accused person set fire to a hotel. An occupant of the hotel was burnt. The occupant later died as a result of her injuries. A charge of murder was laid under section 302(2) of the Queensland Criminal Code. The Circuit Court held that since the act which caused death, i.e., setting fire to the hotel was the unlawful purpose, section 302(2) was inapplicable. Sheehy, J, referred to R. V. Hughes and said:

I can only conclude that the High Court laid it down that in any charge of murder where the unlawful purpose and the dangerous act are the same, section 302(2) does not apply. The results are certainly astonishing and I am inclined to the view that perhaps the decision was given on the facts in that case and may have some limitation to cases where there is an element of personal violence and where there is an element of intention concerned, but I am bound by the High Court and irrespective of the conclusions that are rather peculiar in some cases, I must accept that decision.

The accused person was found not guilty of murder but guilty of manslaughter.

In the above case, the accused person raped a girl of 13 years who bled to death as a result of injuries to her private parts caused by the act of intercourse. The accused was charged with murder under section 316(3), but he was convicted of manslaughter on the ground that his conduct was not such as to endanger human life having regard to medical evidence which showed that it not unusual in Nigeria for a girl of 13 years to have intercourse and that it does not result in death.

The court in this case however, held that if in the course of raping a girl, the accused person presses the girl's throat to prevent her from screaming and thereby throttles her, a charge of murder will clearly be laid under section 316(3). This is because the unlawful purpose is rape and the act which causes death is the act of pressing the girl's throat and if the court finds that the pressure applied is such as is likely to endanger human life, then it would be murder.

The facts of the case above is that a person named Shitta had become unpopular with certain members of the Igboora Native Court because some years ago, he had seduced the wife of the son of the Balogun of Pako, a town near Igboora. The third appellant who was the Baale of Igboora had ordered Shitta to leave the town which Shitta did. On hearing that Shitta was back in town, he ordered the beating of the Oro drums at the sound of which it was customary in Yoruba towns for women to run to their houses. While the drumming continued, he sent the first two appellants to set fire to a house in which all three suspected that Shitta was hiding. A woman who lived in the house was burnt to death in the fire. The appellants were convicted of murder under section 316(3). On appeal against conviction, the West African Court of Appeal affirmed the conviction holding that:

Carrying out by the first two appellants of a felony at the bidding of the third appellant was clearly the prosecution of an unlawful purpose; and that the act was of such a nature as to be likely to endanger human life is implicit in the finding that the fatal burning of Yesago, an inmate of the dwelling house, was a reasonably probable consequence of setting fire to the house.

In this case however, D wished to have sexual intercourse with V. V refused. D offered V a drink of stout beer and put into the drink three tablets of a drug called madrass. D then had sexual intercourse with V when she became very weak. The next day, V started to vomit and died. The trial judge convicted D of murder (applying section 316(4) and (5) of the Criminal Code). On appeal against conviction, the Supreme Court allowed D's appeal on the premise that there was no proof that the drug caused V's death.

In the instant case, the appellant was convicted of culpable homicide punishable with death in the High Court, Minna. The evidence was that he inflicted an injury on the deceased at a village near Zungeru on the 5^th^ day of June, 1983. The deceased did not die on the spot but was carried to a clinic nearby. From the clinic, a policeman was not called as a witness by the prosecution. The witness did not describe the nature of the wound and the part of the deceased's head the appellant was alleged to have struck with a cutlass or whether he was conscious at the time they saw him. P.W. 6, a policeman, said the case diary was handed over to him and that he read about the matter of the death of the deceased. A doctor, P.W. 9, testified that he conducted a post-mortem examination on the body of a deceased person whose name was Dare Kada on the 20^th^ day of June, 1983; that the deceased was identified to him by a brother of the deceased whose name he did not remember and who did not testify at the trial and that the wounds he found on the deceased on that day when it was brought from Zungeru to General Hospital, Minna where the examination was conducted were fresh and could not have been inflicted more than a day before the 20^th^ day of June, 1983 -- the wounds were fresh.

The Appeal Court affirmed the judgment of the trial court. On appeal against conviction to the Supreme Court, the Apex Court allowed the appellant's appeal, discharged and acquitted the appellant. The Court in allowing the appeal, held that under the Penal Code, Cap. 84, where the death of a human being is in issue before a trial court, the prosecution has a duty to prove the following:

1. That the death of a human being has actually taken place.

2. That such death was caused by the person being accused.

3. That the act was done with the intention of causing such bodily injury as:

i. the accused knew or had reason to know that death would be probable and not the likely consequence of his act; or

ii. that the accused and not only the likely consequence of any bodily injury which the act was intended to cause.

The Apex Court further held that:

When an accused person is being tried for a capital offence like culpable homicide, it is a condition precedent that the connection between the act of the accused causing the death of the deceased and the death caused thereby must be established beyond reasonable doubt. It may not necessarily be immediate, but it is indispensable that it must be so connected with the act of violence of the accused by either direct evidence of such cogent and irresistible circumstantial evidence. Where the nature of the connection between the act and the death is in itself obscure, then the condition is not fulfilled and the accused is entitled to be discharged.

In the above case, the medical evidence revealed that the skull of the deceased, a child of eighteen months, was fractured in two places, but that these fractures were not in themselves sufficient to cause death. Dr. Polson's opinion was that the child died of asphyxia. In a letter to the Criminal Law Review (1956) Criminal L.R. 580, Detective Chief Inspector Byrme said that the transcript revealed that there were two depressed fractures of the skull caused, in the opinion of Dr. Poison during fight by a manual grip at the back of the head, forcing the face forward against a resisting surface. The mother's evidence was that when she first saw the child after death, he was bleeding from the side of the mouth and the mouth was bruised. They jury had retired to ask for elucidation of a passage, and the final form of his direction was: 'If, when the person did the act which he did, he must as a reasonable being have contemplated that death or serious bodily injury was likely to result, he is guilty of murder.

In the instant case, Lord Radcliffe pointed out thus:

The prisoner, thereupon, becomes a disembodied spirit, and in his place arises the figure of the fair and reasonable man, who, after all represents no more than the anthropomorphic conception of justice, is and must be the jury itself. The individual members of it will assume, in the absence of some convincing reason, that the accused was a person with a mind in a given set of circumstances precisely in accordance with what his own mental reaction would have been in those circumstances, if each member of the jury would have foreseen the likelihood of death or grievous bodily harm as a result of the act, he will credit the accused with a similar foresight.

The court in the above case held that the objective test must be construed as follows:

"... The question... is not whether in their opinion the provocation would have made a reasonable man lose his self-control but also whether, he would have retaliated in the same way as the person charged in fact did."

In the above case, the common law rule on provocation was stated by Devling J. as follows:

Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control rendering the accused, so subject to passion as to make him or her for the moment not master of his mind.

In the instant case, the accused person insulted a woman with whom the deceased was sitting. The two argued, and the accused threw a bottle of wine at the deceased hitting him on the head, and the accused ran the deceased through with a sword. The judge held that the crime was murder.

In this case, the Supreme Court had restated the ingredients of the defence of provocation thus:

i. The loss of self-control must be both actual and reasonable; and

ii. The retaliation must be proportionate to the provocation

In this case, the provocative act took place much earlier before the appellant followed the deceased to his house and killed him. In affirming the appellant's conviction for murder, the Supreme Court stated that it is settled law that for an accused person to avail himself of the defence of provocation in a charge of murder under section 318 of the Criminal Code Act, the accused must have done the act for which he is charged in the circumstances thus:

In the heat of passion.

Caused by sudden provocation.

Before there is time for his passion to cool.

The position of the law in the above case is that for the defence of provocation to avail an accused person, certain conditions have to be satisfied. The provocation must be such as to cause a reasonable person to lose his self-control. The test is the effect which the provocation would have on reasonable man, not the effect which it did actually have on the accused person. See also R. v. Adekanmi (1944) 17 N.L.R. 99.

In the above case, the wife of the accused person jeered and taunted the accused for being impotent and told him that she was having sexual intercourse with other men. The accused, who was described as an illiterate and primitive peasant was so infuriated that in the heat of passion, he picked up the first weapon to hand which was a cutlass, and killed his wife. He was committed to trial on a charge of murder. In considering the degree of provocation required to reduce to manslaughter what would otherwise be murder and the relevant principle that the provocation suffered must be judged by the effect it would be expected to have on a 'reasonable man' and not by the effect it did actually have, on the particular person charged, the trial judge directed himself the words 'reasonable man' must be taken to mean, 'a reasonable man of the accused's standing in life.' The court held that the accused was not guilty of murder but guilty of manslaughter.

In this case, the girl in charge of firing range in an amusement arcade made improper remark about the accused person. The accused asked for a revolver, pretending to shoot at a range, but shot the girl dead. On appeal, it was argued that the jury should have been directed on provocation and that the principles in Welsh did not apply wherein the accused suffered from defective control and want of mental balance. According to Avory J, this submission would mean a verdict of manslaughter where a good tempered one would be liable to be convicted of murder. The court held that to afford a defence, the provocation must be such as would affect the mind of a reasonable man, which was not in the instant case.

The House of Lords in the above case, laid down that juries should regard the reasonable man as 'having the power of self-control to be expected of an ordinary person of the sex of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him.

The court in the instant case, Francis, J. held that in considering provocation --

The effect it would be expected to have on a reasonable man, must be taken to mean the effect it would be expected to have on a reasonable man of accuser's standing in life, for it would, I think, be improper to examine the question in the light of what would be sufficient provocation in the case of an educated and civilized person. The accused, be it noted, is an illiterate and primitive peasant of his country, and it must beyond doubt that the passions of such a type are far more readily aroused than those of a civilized and enlightened class.

The alleged 'slow-burn' reaction was dealt with in the above case, wherein the Court said:

We accept that the subjective element in the defence of provocation would not as a matter of law be negative simply because of the delayed reaction in such cases, provided that there was at the time of the killing a 'sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.

The court held in this case that the judge was bound by the plain words of the section to leave provocation to the jury where there was evidence that the persistent crying of his baby had caused the accused to lose his self-control and kill the baby. The court considered the crying of the baby as a 'Thing Done.'

The Supreme Court in the instant case, was of the opinion that under section 222(1) of the Penal Code Act, words could constitute provocation. The Apex Court held thus:

...The law does not tabulate the acts that are likely to cause or produce provocation but it is concerned with the creation and existence of the provocation. What constitute provocation under section 222(1) of the Penal Code is a question of fact. The provocation may be verbal or physical or both.

In this case, the accused killed his wife upon the wife's adultery with another man. It was held that the judge was wrong to direct that the wife's conduct and, by implication, not that man, was to be taken into account.

Under the English law, before the English Court of Appeal's decision in the above case, where there existed malice-after thought in any kingly, the killing was murder, notwithstanding the presence of acts which constituted provocation. This is because malice-after thought means 'intent to kill', the existence of malice inspired by provocation, will not excuse the killing, even if the killing was due to grave and sudden provocation. See also Lee Chun Cheun (1953) A.C. 200

The Supreme Court in this case, re-emphasized that the relationship between the act of provocation and mode of resentment must bear reasonable relationship. It stated thus:

It should be taken into account that the mode of resentment to the provocation must bear reasonable relationship to the act which provoked the appellant. A person slapped could not use a deadly weapon like a gun in retaliation against his assailant.

The West African Court of Appeal in the above case, rejected the accused person's defence founded on witchcraft, not because such belief was not shared by members of the accused's society, but probably on the ground of evidential proof. The court said:

...No doubt that a belief in witchcraft such as the accused obviously has is shared by the ordinary members of his society. It could however in my opinion be a dangerous precedent to recognize that terrible result as is disclosed by the facts of this case, is generally prevalent among a community, it is therefore reasonable.

In this case, the appellant suddenly developed impotency. He was told by his wife that she was responsible for it. She later promised him that she would arrange for a herbalist to treat him. When the treatment proved ineffective, the wife told him that there was no remedy. When the condition remained unchanged, the appellant attacked his wife and killed her. The appellant's conviction of murder was affirmed by the Appeal Court on the premise that it is a settled law that a plea on such belief without anything more must fail.

The East African Court in the above case, has laid down the proposition that if the accused person caught the deceased person in circumstances he reasonably believed that the deceased was practicing witchcraft, he would be entitled to plead the defence of provocation.

In the case above, an appeal from the former High Court of Gongola State, in which evidence was produced that at the time of the offence, the accused was suffering from unsoundness of mind as a result of which she acted under an uncontrollable impulse which made her incapable of knowing whether her act was wrong or contrary to law within the meaning of section 51 of the Penal Code. The court held thus:

She had satisfied the burden of establishing her defence of insanity on a preponderance of probabilities. It was not relevant that she had no previous history of mental illness in view of the expert psychiatric evidence that she was suffering from an emotional disturbance which was probably of a temporary nature. The fact that the appellant has on the following day given a detailed account of the circumstances of the offence did not negative the defence since it did not in itself show that he had the capacity to control her actions at the time of offence.

A woman in the instant case, was charged of murdering her husband. There was evidence of series of domestic violence by the husband. She was convicted of murder. On appeal against her conviction, it was argued that the murder conviction was not safe and also unsatisfactory because of the woman's diminished responsibility. The appellate court in allowing the appeal and ordering a retrial, held that had the medical evidence that the accused suffered from Battered Women Syndrome or Post-Traumatic Stress Disorder was made available at the trial court, the accused would have been able to rely on the defence of diminished responsibility.

By virtue of the provision of section 318 of the Criminal Code Act, the law is that if a person kills another in the heat of passion caused by grave and sudden provocation, and before there is time for his passion to cool, he is guilty not of murder but of manslaughter. The section does not attempt to define provocation and the courts have treated it as importing the common law of England into Nigeria. See also R. v. Afonja (1955) 15 W.A.C.A.

The court however in this case, held that section 283 of the Criminal Code Act defines provocation for the purpose of section 318 of the Criminal Code Act. It thus read:

... When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault...

The Supreme Court in the above case, considered the question whether the meaning of provocation in section 318 is to be found in section 283 or in the common law and held that sections 283 and 318 of the Criminal Code must be read together.

In the instant case, the position of the law is that the courts in considering provocation, must take into account the cultural status of the accused person. This is because an act committed by the deceased against an illiterate and primitive peasant may amount to legal provocation while it may not do so if committed against an educated and civilized person.

The law in this case is that in applying the test of an average man in a community in respect of provocation, a judge should not accept what a witness says that he would do in the circumstances as the reaction of the average man in that community.

The Federal Supreme Court while ordering a new trial, held that there was provocation where a woman likened a Muslim to a dog.

In the case above, the Supreme Court held that where V let in cattle which destroyed crops in D's farm followed by threat of violence with a stick against D, this is such gravity and sudden provocation as would deprive D of the power of self-control considering his social and educational background. The gravity of the provocation should be assessed in the high of the manner of life of the community to which D belonged.

The law is that in provocation, the factors which are peculiar to the accused person are not taken into account during consideration. The fact that the accused person is naturally aggressive or hostile, or that he was drunk at the time of killing the deceased and that the drunkenness rendered him more easily excitable is of no consequence.

The accused person was sexually impotent in this case. He tried to have sexual intercourse with a prostitute without success. The prostitute taunted and kicked the accused. This made the accused to lose self-control. He stabbed the prostitute twice and killed her. On a charge of murder, he pleaded provocation and argued that the proper test was what would be the reaction of an impotent reasonable man in the circumstances. The House of Lords upheld a direction that the proper test was the effect which the conduct of the prostitute would have on an ordinary person, not on a sexually impotent person.

However, in this case, the accused person, a boy of 15 years killed the deceased by striking him on the head with a chapati pan because the deceased had buggered him against his will and then laughed at him as a result of which he lost his self-control. He was charged with murder and he pleaded provocation. His counsel suggested to the jury that when they considered whether section 3 of the Homicide Act of 1957, the provocation was enough to make a reasonable man do what the accused did. They should consider not the reaction of a reasonable boy of the accused's age. The accused was convicted of murder and he appealed to the Appeal Court Criminal Division which substituted a conviction for manslaughter, taking the view that the direction was wrong. The prosecution appealed to the House of Lords.

The House of Lords held that under section 3 of the Homicide Act, 1957, the jury could in applying the reasonable man test, take into account everything including the physical peculiarities of the accused person such as his age, colour, sex, physical and mental disabilities. The jury should be told that the reasonable man is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him.

In this case, the judge took into account the fact that D was a woman uneducated and uncivilized.

The prisoner's wife in this case, left the prisoner and went to stay with her mother. She began to accept the advance of Y. The prisoner tried hard to win his wife back but failed. At about 9 p.m. one evening, the prisoner visited his mother-in-law and found his wife and Y having sexual intercourse. He returned to his own house to brood over his misfortune. At about 1 a.m., he took a machete and returned to his mother-in-law's house to kill Y is he was still there. He found his mother-in-law snoring and heard his wife and Y talking in a dark room. He struck twice on the bed and killed his wife. He also killed his mother-in-law when she ran into the room. On a charge of murder, the prisoner pleaded provocation. His defence was rejected because between the provocation and the killing, enough time had elapsed for his passion to cool. See also R. v. Hayward (1833) 6 C. & P. 157.

In the instant case, the law is that in determining whether there has been enough cooling time, it is proper to take into account the degree of provocation offered. For the more serious the provocation, the longer will be the time required for passion to cool.

The law is that in deciding whether the provocation was sudden, previous wrongful acts and insults by the deceased are not sufficient. This is because they do not supply the requirement of suddenness. Yet, if the deceased subsequently does another wrongful act to the accused person which may be trivial or insignificant, it is legitimate to take into account the previous provocative acts in order to determine whether the last wrongful act amounted to sufficient provocation.

It is the law that the final wrongful act or insult by the deceased person might, of itself, be comparatively trifling, but when taken with what had gone before, it might be the last straw in a cumulative series of incidents which finally broke down the accused's self-control and caused him to act in the heat of passion.

In this case, the appellant came home one night in a drunken state and found his step-father, the deceased beating his mother. He tried to separate them and the deceased hit the appellant twice on the head with a stick, warning him not to interfere in a fight between husband and wife. The appellant then went indoors, slept for a few hours and woke in response to the deceased's call. He went outside, found his mother dead with a severe head injury and saw the deceased some distance away. The appellant then moved his mother's body to a shade, took a panga from the house and chased the deceased to a house about a hundred yards away. They then exchanged words which made the appellant became more infuriated, and while they were walking towards the mother's body, the appellant killed the deceased.

The trial judge rejected the appellant's plea of provocation to a charge of murder because enough time had elapsed for passion to cool. On appeal, the appellate court in allowing the appellant's appeal, held that the incidents formed a connected series of events which made the actual killing of the appellant's mother so proximate to him as to have been constructively done in his presence and that, taking into account the degree of provocation, enough time had not elapsed for passion to cool.

The law in the instant case is that where provocation by a husband is alleged, the court is entitled to take into account the whole history of the marriage.

The position of the law in the above case is that provocation by one person is no excuse for killing another person who does not in fact offer any provocation to the accused person. The court in the case above held that the doctrine of provocation was never intended to furnish a justification for an indiscriminate vendetta.

In this case, the law is that if A having received provocation from B, fires a shot at B in such circumstances as would make the killing manslaughter only, and by accident, he kills C who did not offer any provocation to A, the killing is manslaughter, and not murder.

In the instant case, the deceased who had married the prisoner's daughter was seen by the prisoner to be beating his wife (i.e. the prisoner's daughter). He rushed up to the deceased, struck him a blow from which he died. The court held the prisoner guilty of manslaughter.

In this case, the accused person went to a farm and met four women, one of whom was his ex-wife who had since married another man. The accused demanded for the cloth the woman was wearing and the woman was untying it at the insistence of the other women. The accused stabbed the woman several times and killed her. The accused overtook one of the other three woman as they were running away and killed her. He was charged with murder of his ex-wife but was convicted of manslaughter on the ground of provocation. On a further charge of murdering the second woman, the court held that even if the accused person lost his self-control as a result of the provocation given by his ex-wife, he was nevertheless, guilty of murder because the second woman did not give him any provocation. See also Amako v. State (1995) 6 LKR 1241 (S.C.).

The law is that where there is a joint attack by a group of persons and a blow is struck by one of such group, retaliation may be taken against any member of the group even though he was not the person who struck the actual blow. The court has held that in such cases, the provocation is not merely the blow struck but also the attack by the entire group and the real test is whether if the deceased had lived, he could have been properly prosecuted in respect of that blow.

The law in this case is that in considering the plea of provocation raised by an accused person, the mode of resentment must bear a reasonable proportion to the provocation offered.

The position of the law in the instant case is that the court in considering the mode of resentment meted out to the provocation given by the deceased person, must take into account the nature of the instrument with which the homicide was effected.

The court in the above case, took into account the fact that the dagger used by the accused, a Kanuri, was worn by his tribe as an ornament.

The position of the law in the case above is that the court should also take into account the nature of the act resulting from the provocation.

The law in the instant case is that provocation which may cause a reasonable person to retaliate with a slap on the face, i.e. excuse an assault, may not reduce murder to manslaughter where the accused savagely batters the offender to death with a deadly weapon. But if a man who is provoked retaliates with a blow from his fist on another grown man, a jury may well consider, and probably would, that there was nothing excessive in the retaliation even though the blow might cause the man to fall and fracture his skull, for the provocation might well merit a blow with the fist. It would be another thing if the person provoked not only struck the man, but continued to rain blows upon him or to beat his head on the ground.

In this case, a woman brought her daughter's dead body home. When the woman's husband scolded the woman against such conduct, the woman used despicable and offensive language to the husband. The husband stabbed the woman five times with a heavy dagger. The court held that the degree and method of violence used by the man prevented the court from bringing a verdict of manslaughter.

The deceased in this case, wanted to leave her husband. She took with her some of the clothes which her husband bought for her. A struggle for the clothes ensued when she refused to leave the clothes at the request of the husband. She pushed the husband down twice. The husband got hold of a stick, struck her two blows on the head and she died. The court held that the provocation was slight in proportion to the husband's deed. See also Wonaka v. Sokoto Native Authority (1956) N.R.N.L.R. 19.

After the loss of a local council election by A's cousin in the instant case, A was provoked by abusive songs against his family. He lost his self-control and killed one of the singers with a machete. The post-mortem examination revealed that the deceased has about ten severe wounds. The court holding that the defence of provocation raised by the accused person would not avail him, pointed out that the injuries inflicted on the deceased person were severe and the weapons used was such that the mode of retaliation was out of all proportion to whatever the deceased said or did to A.

The principle of proportionality to the degree of retaliation given is not specifically provided for in the Code but it was imported from English law. In the above case, the Privy Council held that the principle was part of the law of Ceylon even though he Code does not mention it.

The appellant in this case, was attacked by three persons of whom the deceased person was one of the attackers. The appellant inflicted four blows on the deceased and she die. The trial judge found that the sudden attack on the appellant would cause a reasonable person of the appellant's standing in life considerable anger and cause him to strike the deceased once, but that it did not excuse his continuing to deal death blows on the deceased then incapacitated, for the second, third and fourth times in quick succession. The Federal Supreme Court, disagreeing and finding the provocation proved, pointed out that the finding of the trial judge implied that there was time for the appellant's passion to cool between the infliction of the first and other injuries. "We are unable to agree. All four blows were delivered within a matter of seconds of each other and if the first blow was, as the learned judge found, given in the heat of passion caused by sudden provocation, we cannot see how the other blows can be treated differently.

Provocation may be by words or deed. The old common law rule was that words alone could not be sufficient provocation to reduce murder to manslaughter. This rule was however modified in the above case where the court held that words alone could not amount to provocation save in circumstances of a most extreme and exceptional character.

The position of the law with respect to provocation is that words alone can amount to provocation sufficient to reduce murder to manslaughter. The Federal Supreme Court in the instant case, held that:

We do not, however, agree with the learned trial judge that words alone can never constitute such provocation as to reduce an offence from murder to manslaughter.

The court in this case, held that a mere confession of adultery without more is not sufficient to reduce murder to manslaughter.

However, the court in this case, held that there was sufficient provocation to reduce the offence from murder to manslaughter where a wife jeered at her husband who was an illiterate and primitive peasant, taunted the husband of being impotent, and told him that she was having sexual connection with other man.

The decision of the court in the instant case is that taunt of impotence and a slap by W amounts to sufficient provocation.

In this case, a village wife who was nursing a seven-month old child and also five months pregnant called her husband a fool when the husband questioned her as to who was responsible for the pregnancy. The court held that this constitutes provocation. The accused person was convicted of manslaughter even though the judge found that he also acted in self-defence.

But in the case above, a wife's refusal to prepare food for her husband has been held by court not to be sufficient to constitute provocation.

In the above case, for a woman to mock her husband with incompetence and spit on his face may, in certain circumstances, reduce murder to manslaughter. This is because in primitive communities, where the subjection of women is accepted as natural and proper, such an insult from a wife arouses more passion than in more sophisticated societies.

In the instant case, for a younger brother to say to his elder brother during a quarrel that he had provided money for the elder brother's marriage has been held by the court not to amount to such provocation as would reduce the offence from murder to manslaughter.

In this case, the act of intervening in a fight and wounding an already wounded unarmed man who is struggling to unarm his original assailant is an act of provocation.

However, in the above case, V threw charms at D in D's house with a curse that his two sons will die one after another. The next day, D's two year old son died in mysterious circumstances. D's townsmen, including V came to console D and assist him in the burial of his son, V taunted D saying: "D, I told you that you will see" and he made jest of D by placing fingers on his eyes. D rushed to his room, took a cutlass and struck V on the head and stomach. V died subsequently. The Supreme Court held that the defence of provocation did not avail D because the provocation consisted of mere words, based on belief in witchcraft. The Apex Court stated that there was cooling time and D's reaction was disproportionate to the provocation.

In the above case, W was asked by her husband to prepare a place for his lover, V, to sleep when V arrived at their home at night. W dutifully complied. V, whom W resented, slept on the bed where W and her two children sleep. The trial High Court and the Appeal Court held that such act by V was not sufficient to amount to provocation. But the Supreme Court unanimously held that V's attitude amounted to provocation.

In the instant case, V stole goods from a woman and inflicted fatal knife cuts on the woman's son who pushed him. The Supreme Court held to be sufficient provocation when V threatened two other pursuers with a knife and they caught up with him and he killed them.

The law in the above case is that a lawful act, for example, a lawful arrest by a private person, cannot constitute provocation to a person.

The decision of the court in this case is that an unlawful arrest may be evidence of provocation to a person who knows the illegality by virtue of the provision of section 283 of the Criminal Code, and if there is no evidence that the accused was not aware of the illegality, the presumption most favourable to the accused person should be made.

In the instant case, the Federal Supreme Court adopted a dictum in R. v. Holmes to the effect that:

The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negative. Consequently, where the provocation inspires an actual intention to kill or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.

Lord Goddard, C.J., giving the opinion of the Privy Council said in the instant case thus:

The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation.

The position of the law in the case above is that the burden of proof in the plea of provocation is never on the accused person to establish it. If the evidence discloses a possible plea of provocation, the burden of proof remains throughout on the prosecution to negative it and prove beyond reasonable doubt that the accused did not kill the deceased in the heat of passion caused by sudden provocation. See also Nwagu v. State (1966) ALL N.L.R. 213.

The position of the law in the instant case is that the accused person will raise the issue of provocation and call evidence on it if he wishes to rely on that plea to reduce murder to manslaughter, and section 141(1) of the Evidence Act is to the effect that the burden is on the accused person to prove the existence of any defence or qualification to the offence charged.

The law is that the accused may plead accident or self-defence and he may not wish to plead provocation as well. This is because, being an inconsistent plea, it is bound to weaken, if not destroy the alternative defence. In such cases, the law does not place the accused person in a fatal dilemma but requires the judge, if he is sitting alone to consider the question of provocation, or if he is sitting with a jury, to direct the jury upon it, provided in either case, the evidence discloses a possible plea of provocation fit to be considered by a judge or left to a jury. See also Apishe v. State (1971) 1 ALL N.L.R.

Lord Goddard in the above case, stated the law when he said:

But if on the whole of the evidence, there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the judge must put that question to the jury. This was distinctly laid down in R. v. Hopper, a case in some respects resembling the present, more especially in that line of defence adopted was that the killing was accidental and no attempt had been made at the trial to rely on provocation. This ruling was expressly approved by the House of Lords in Mancini v. D.P.P. the reason for the rule is that on an indictment for murder, it is open to a jury to find a verdict of either murder of manslaughter, but the onus is always on the prosecution to prove that the offence amounts to murder if that verdict is sought. If on the whole of the evidence there is nothing which could entitle a jury to return the lesser verdict, the judge is not bound to leave it to them to find murder or manslaughter. But if there is any such evidence then, whether the defence have relied on it or not, the judge must bring it to the attention of the jury, because if they accept it or are left in doubt about, the prosecution have not proved affirmatively a case of murder.

The decision of the court in the above case is that if D does not plead provocation and the judge takes it upon his own, he has no duty to invite D to prove argument on provocation.

In the instant case, the law is that if D alleges that a defence available to him was not considered, he has a duty of proving the availability of the relevant evidence by reference to the record.

The position of the law in the case above is that when a person does an act or makes an omission and death results from negligence on his part, the question whether he is guilty of manslaughter is dependent on the degree of negligence. The Criminal Code is silent as to the requisite degree of negligence but Nigerian Courts have held that the degree is the same as in English law.

The House of Lords in the instant case, decided that for there to be an involuntary manslaughter, the elements listed below are fundamental. They are:

i. That there is a breach of duty of care owed by D to the victim;

ii. That that breach of duty caused the death of the victim; and

iii. That the breach was sufficiently serious to constitute gross negligence.

The deceased in this case, died as a result of a medical operation negligently performed by a Surgeon. The court held thus:

In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amount or did not amount to a crime, the judges have used many epithets, such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to crime against the state and conduct deserving punishment.

In the instant case, a qualified medical practitioner caused the death of a number of persons by administering to them too strong a dose of sobita. It was argued that under section 303 of the Criminal Code, only a lack of reasonable care was required to make the killing manslaughter. That is to say, that the degree of negligence required under section 303 is less than that required by English law. In rejecting this argument, the West African Court of Appeal pointed out that section 303 does not say that a person failing to use reasonable care is guilty of manslaughter, but merely that he is held to have caused any consequences resulting to the life or health off another person. Death resulting from mere negligence may be an accident for which there is no criminal liability because it is excused under section 306. In order that negligence may result in manslaughter, such negligence must be gross. In other words, it must be such criminal negligence as is required by English law.

The law in these cases is that when an unqualified or an unlicensed person undertakes a surgical operation or other medical treatment, the law requires him to possess the requisite skill and to use it. If he does not, he is guilty of criminal negligence.

In the instant cases, the position of the law is that if the evidence shows that the person though unlicensed, possesses the requisite skill and performed the operation skilfully, he is not guilty of manslaughter simply because he is an unlicensed practitioner.

The law in the instant case is that in every case, reckless conduct must be proved.

In this case, the driver of a car which had defective steering and useless brakes was held guilty of manslaughter when without any apparent reason, his car mounted a pavement and killed a child because his conduct in driving the car in the condition in which it was showed as reckless disregard for the life and safety of others.

The Appeal Court in the instant case, held that an underlying principles of the law of the highway is that all those lawfully using the Highway must show mutual respect and forbearance. Reasonable care on the Highway connotes avoidance of excessive speeding, keeping a good look out, observing traffic rules and signals and so on.

The Appeal Court in the instant case, held that an underlying principles of the law of the highway is that all those lawfully using the Highway must show mutual respect and forbearance. Reasonable care on the Highway connotes avoidance of excessive speeding, keeping a good look out, observing traffic rules and signals and so on.

The Supreme Court's decision in this case, with respect to the principles of the law as regards the use of Highways thus:

It will be appreciated that the offence of causing death by dangerous driving was promulgated by the defunct Eastern Nigeria Government as an alternative to the offence of manslaughter by reckless driving as it was proving difficult in most cases for the prosecution to prove recklessness on the part of the offending drivers. Most drivers, as a result, escaped conviction. In the circumstances, it would be wrong to convict an accused person of manslaughter and at the same time, convict him of the alternative offence of causing death by dangerous driving based on the very same facts.

In the instant case, the Court of Appeal, Ibadan Judicial Division, per Augie, JCA, decided that the burden of proof on the prosecution in an allegation that the appellant caused the death of the deceased person by dangerous driving and that the appellant drove dangerously as alleged against the appellant, the prosecution had to prove the following ingredients of the offence beyond reasonable doubt against the appellant, to wit:

i. That the appellant's nature of driving was reckless or dangerous;

ii. That the dangerous driving substantially caused the death of Madam Isimotu Rabiu, the deceased in this case; and

iii. That the accident occurred on a Federal Highway.

The court has held it to be a criminal negligence of the highest degree in the case above for a person to drive a car without any brakes, and with defective steering equipment at thirty miles an hour on a busy thoroughfare such as the Warri to Sapele Road.

It was also the decision of the court in this case that anyone driving fast and zig-zagging along the road in a built-up area by night when pedestrians and other vehicles are about shows complete and criminal disregard for the life and safety of others and he is guilty of gross negligence.

The decision of the court in the above case is that for a driver to go over to the middle line of the road a few inches while leaving a wide margin for on-coming cars does not constitute recklessness. However, to do that and at the same time blind the driver of an approaching car with powerful headlights constitutes a reckless disregard for the safety of other road users.

The law in this case is that where a taxi-driver entered a main road with an excellent view in both directions and collided with a lorry properly driven on the road at a time when he had been signaled to stop and had in fact, stopped for a moment, he was convicted of manslaughter of a passenger who died in the collision because his conduct exhibited gross negligence and a complete disregard for the lives and safety of his passengers.

However, in this case, the mere fact that a driver whose lorry skidded and caused the death of a passenger had only a learner's permit is not be itself evidence of gross negligence.

The position of the law in the above case is that excessive speed on a main thoroughfare is not, by itself, conclusive evidence of gross negligence, though, it may be strong evidence of dangerous driving.

The law in the case above is that there must always be specific evidence of negligence and the doctrine of res ipsa loquitur does not apply in these cases.

In the instant case, the court held that contributory negligence is not a defence to a charge of manslaughter, but that the negligence of the other driver must be considered in deciding whether on circumstantial evidence alone, the high degree of negligence necessary for a conviction for manslaughter is had been proved against the appellant.

The Supreme Court held in the case above that the degree of proof required to establish an offence under section 5 of the Federal Highways Act 1971 is not as high as what is required to prove manslaughter.

The law in the above case is that the degree of negligence which will suffice for a conviction for dangerous driving will not do for a conviction for manslaughter.

The court in the instant case, held that the degree of negligence necessary for a conviction under the provision of section 343 of the Criminal Code is not as high as in a prosecution for manslaughter.

The law in the above case is that reckless or negligence as a mental element, does not take cognizance the state of the mind of the accused person. Where the death of a person is due to recklessness or negligence, liability is imposed irrespective of the absence of mens rea. Under the provision of section 4 of the Federal Highway Act, 1971 (now section 5 of the 2004 Act, Cap. F13 LFN 2004) mere inadvertence of the accused would be sufficient.

In this case, the accused person alleged that while he was opening a razor in order to frighten another person, the deceased person who was weakened as a result of being drunk, swayed against the accused and the deceased throat was accidentally cut. The accused person was charged for murder. The Court of Criminal Appeal held that the trial judge was correct in directing the jury that on those facts, there could not be a verdict of acquittal but that there must be one of manslaughter. Humphreys, J, said:

Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is an act which is likely to injure another person, and quite inadvertently, the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.

The court held in the instant that:

An unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.

In this case, the appellant, a police officer attached to the Mobile Unit of the Nigeria Police Force, was convicted for murder by the trial court. The appellant appealed to the Appeal Court. The Appeal Court found that there was no dispute that the appellant was engaged in a lawful duty, and was doing a lawful act -- a check point duty, which is on the face of it, dangerous to human life. The Appeal Court thereupon posed to itself the question whether the law in Nigeria imposes any duty on persons doing such dangerous acts? If so, what is the penalty for a breach of such duty on persons doing such acts? The Appeal Court placed reliance on section 303 of the Criminal Code in resolving such a problem.

The Appeal Court was of the opinion that, based on the provision of the section and coupled with the appellant's admission that he was shooting at the tyres of the vehicle when the incident occurred, it is clear that the appellant's failure to use reasonable care in carrying out his lawful duty has brought his act within the ambit of section 306 of the Criminal Code dealing with unlawful killing. The Appeal Court therefore applied the provisions of section 327 of the Criminal Code and held that the killing of the deceased does not amount to murder, but manslaughter. The Supreme Court arrived at the same conclusion with the Appeal Court. Although, the Apex Court's reasoning was slightly different on whether the act of the appellant was consistent with the provisions of section 303 and 306 of the Criminal Code. The Apex Court held that:

"...I don't think it is appropriate in case of a member of the Mobile Police Unit, to equate his duty of checking motorist on the road as dangerous to life. Not so operation of the gun and the ordinary exercise of his skill."

The House of Lords in this case, emphasized that it was not necessary for the prosecution to prove that the accused person knew that the act was unlawful or dangerous, the test was not whether the accused himself recognized the act to be dangerous but, whether sober and reasonable people would recognize its danger.

The court held in the above case to be manslaughter where the accused person raped a young girl who bled to death as a result of injuries to her private parts.

The court in this case held the accused person guilty for manslaughter for the occurrence of death as a result of an unlawful abortion.

In the above case, four accused persons tied the deceased to a post and proceeded to beat him with fists and sticks. The deceased died. The court found that the accused persons did not intend to kill the deceased or to cause him grievous bodily harm. They accused were convicted of manslaughter. See also Udo v. R. (1964) 1 All N.L.R. 21, A.N.L.R. 16 (S.C.)

The accused person in this case, inflicted several blows on the deceased. The deceased slumped to the ground, became unconscious and subsequently died from brain haemorrhage. The judgment of the court proceeded on the basis that the blows inflicted by the accused person would not kill a normal healthy person but that the blows killed the deceased person because of some weakness peculiar to the deceased. The court convicted the accused of manslaughter, holding that the defence of accident under section 23 of the Queensland Criminal Code was not open to the accused because death was the direct and immediate result of his intentional act.

The accused person in the instant case was struggling with the deceased for the possession of some fruits. The accused pushed the deceased down and stuck her twice in the stomach with a stick. The deceased's spleen which was enlarged as a result of chronic malaria was ruptured and she died almost at once. The court found that the accused person did not intent to kill the deceased. The evidence before the court did not show an intent to cause grievous harm which, as the court found, was not objectively foreseeable consequence of the blows the accused inflicted on the deceased. The Supreme Court set aside a verdict of murder and substituted a verdict of manslaughter.

In this case, a woman gave birth to twins and within an hour afterward, she killed the twins because of a custom prevalent in her town that it was an abomination to give birth to twins. The woman was convicted of murder but on appeal, the appellant court held that the conviction, if any, should have been for infanticide and not murder.

The court held in the above case that the word has the same meaning which it hears at common law.

The position of the law in this case is that at common law, an abortion is unlawful if it is not done for the purpose of preserving the life of the mother.

In this case, the law is that if the substance administered causes a miscarriage, it is clearly a poison or noxious thing.

The law in the instant case is that a substance which has a harmful effect can rank as a poison or noxious thing, although, it is not an abortifacient.

In the instant cases, the law is that if a person is charged with attempted murder, the prosecution must prove an intent to kill, and not merely an intent to do grievous harm. Although, if death results from grievous harm which is caused intentionally, it is murder.

In this case, the position of the law is that if A points a loaded gun at B, it is an assault because A has actually present liability to effect his purpose.

However, the law in the above cases is that if unknown to B, the gun is not loaded, but A purports the gun to be loaded, it is also an assault. This is because A has apparently present a liability to effect his purpose.

The accused person in this case, pointed a loaded gun at the prosecutor and threatened to shoot the prosecutor. The prosecutor said in evidence: "I was not a bit scared." Chubb J., said that it was immaterial that the person assaulted should be put in fear -- it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was courageous or a timid person. The court held that the act of the accused person was an assault.

The court in this case, held that the plaintiff did not commit an assault when he put his hand upon his sword and said to the defendant: 'If it were not assize-time, I would not take such language from you' because as the court said, 'the declaration of the plaintiff was that he would not assault him, the judges being in town, and the intention as well as the act makes an assault.

A force may be applied indirectly as where the accused person frightens the victim who injures himself trying to escape. The law in the instant cases is that in such circumstance, an accused person will be guilty even though there is no direct assault or battery provided the victim's reaction was reasonably foreseeable.

In the case above, a police officer ordered the defendant to park his car. The defendant reluctantly complied. The defendant in doing so, accidentally drove the car on to the policeman's foot. When the police officer asked him to remove his car, he said: 'Fuck you, you can wait' and he turned off the ignition. Because of the steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that the act of the defendant constituted an assault.

The accused in the instant case, administered an illegal injection to a victim who was incapacitated for sixteen days. The court held that this fact did not constitute grievous hurt. The accused could be convicted only for lesser charge of causing hurt.

The law is that for an assault to be unlawful, it must be done without the consent of the person assaulted. The law presumes that the person who go about in public, consent to that degree of contact which is inevitable incident of everyday life. If A loses his pen and B pats A on his shoulder having found the pen, no assault is committed. Where persons rush to catch a bus and jostle one another in the process, no assault is committed. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, there will be no battery.

The decision of the court in the instant case is that consent to an assault is ineffective if the assault is of a nature likely to endanger human life or to amount to a breach of the peace.

It is the law that consent obtained by the use of threats or intimidation is not a valid consent. Consent also obtained by fraud is not a valid consent. This is because fraud vitiates consent. However, the proposition that fraud vitiates consent in criminal matters is not valid true if taken to apply in the fullest sense of the word, and without qualification.

The position of the law is that in a charge of assault, provocation may be a valid defence. However, as the court decided in the above case, for provocation relating to assault to succeed, the force used must be proportionate to the provocation offered.

The court in the instant case, held that if one person immobilizes another in a room by hypnotism, he confines that other in the room just as much as if he had locked the door of the room.

The court convicted a police officer in this case of false imprisonment for unlawfully arresting the complainant and depriving the complainant of his personal liberty for more than two days.

The court has decided in the instant case that for rape to be established, penetration must take place. In other words, there cannot be rape without penetration, because the offence of rape is complete upon penetration.

The court in this case, held that it is not necessary to prove that the hymen was ruptured, no emission need be proved.

However, the Northern Nigerian High Court in this case, while rejecting the evidence of penetration because the doctor who examined the girl did not specify what area of the private part that was ruptured held that though the offence of rape is complete upon penetration, ejaculation and/or rupture of the victim's hymen are important by way of evidence.

In the case above, the court refusing the complaint of the victim that the accused person lied on her. Held that, that was not sufficient evidence of sexual intercourse.

The Supreme Court in this case held that sexual intercourse is deemed complete thus:

I will pause here to state that the important and essential of the offence of rape, is penetration. It is also settled that sexual interference is deemed complete, upon proof of penetration of the penis into the vagina...Per Lord Coleridge, C.J. that 'emission' is not necessary requirement... It is however, been held, that any, even the slightest penetration, will be sufficient to constitute the act of sexual intercourse. This is why, even where penetration was full, but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime of rape... Thus proof of the rupture of the hymen is unnecessary to establish the offence of rape.

The Privy Council held in the above case that if after penetration, D realizes that V was not consenting and he does not stop, his act would amount to rape.

The English Court of Appeal held in the instant case that the Parliament had adopted and incorporated in the Act the statement in the Heilbronn report, so that:

...the question now is simply: at the time of sexual intercourse, did the woman consent to it? It is not necessary for the prosecution to prove that what might otherwise appear to have been consent was in reality merely submission induced by force, fear or fraud, although one or more of these factors will no doubt be present in the majority of case of rape.

The appellate court in the instant case, upheld a conviction where the accused person had intercourse with a woman whom he had rendered insensible by giving the woman liquor in order to excite her.

The decision of the court in the above cases is that in a charge of rape, it is not necessary for the Crown to prove that the woman positively dissented. What is required is that the woman did not assent.

The accused person in this case, had intercourse with a girl of thirteen years of weak intellect. The court held that the jury were rightly told that the accused was guilty if they are satisfied that the girl was incapable of giving consent or exercising any judgment on the matter.

The court has decided in the case above that on a charge of rape, absence of consent is very vital. The prosecution is duty bound to prove that the accused person indeed had carnal knowledge of a woman or girl, notwithstanding her, and without her consent.

The true position of the law is that it is immaterial whether the complainant is a common prostitute; that she has consented to intercourse with the accused person on other occasions; or that she is the accused's concubine.

The House of Lords in the instant case, held that if an accused person believed that the woman was consenting, he should not be guilty of rape even though he had no reasonable grounds for his belief.

The law is that no consent would be effective if such consent is obtained by fraud relating to the nature of the act, or to some other fundamental matter. The accused person in the instant case was convicted because the victim submitted to intercourse with him under the impression that the accused was performing a surgical operation. See also Williams (1923) 1 K.B. 340

The accused person was convicted and sentenced to six months imprisonment in the above case because he masqueraded as a security man and inducing a girl to consent by threatening to report the girl to her parents and the police that she had been seen having intercourse in a public place.

In this case, the complainant testified that she was raped by three boys. When she was recalled at the instance of the defence, she changed her evidence and said she had consented because the boys paid her money for the intercourse. There was very strong independent evidence that the rape was committed. The trial judge cross-examined the complainant extensively and rejected her subsequent evidence as concocted at the instance of the boys and convicted them. The Supreme Court held that her subsequent evidence of consent should have led to the irresistible conclusion that the prosecution had failed to prove absence of consent. The appellate court therefore, allowed the appeal.

The Court for Crown Cases Reserved held that the woman's consent to sexual intercourse was a defence even though she was deceived into thinking that the accused person was her husband.

The Court for Crown Cases Reserved upheld the impersonators conviction on rape.

The Supreme Court, relied on section 2(1) of the Criminal Code and held in the instant case that a child means any person who has not attained the age of 14 years.

The law is that a husband cannot be guilty of rape upon his wife. However, this privilege or immunity has a limited effect. The court has decided in the above case that if the marriage has been dissolved, or if a court of competent jurisdiction has made a separation order containing a clause that the wife will no longer be bound to cohabit with her husband, then the implied consent to intercourse given by the wife at marriage would be revoked. It was also decided by the court that while the order is in force, it will be rape for the husband to have intercourse with the wife without her consent.

The decision of the court in the instant is that the fact that a wife has presented a petition for divorce does not by itself revoke the implied consent to intercourse.

The position of the law is that an undertaking by a husband (in lieu of an injunction) "not to assault, molest or otherwise interfere with his wife..." is equivalent to an injunction and has the effect of revoking the implied consent to intercourse.

The court's decision in the above case is that a husband may not be guilty of rape upon his wife. However, where he uses force or violence to exercise his right to intercourse, he may be guilty of assault or wounding.

The law formerly in English, is that a husband can be guilty of raping his wife only if they had been legally separated as decided by the court in the case above.

It is also the law that a husband can be found guilty of assault if sexual intercourse was accompanied by undue violence as the court held in the instant case.

The accused in the case above shaved the pubic hair on his wife's private part. He was charged with indecent assault. The court held that the assault as between husband and wife could not properly be characterized as indecent. The husband was convicted of an assault under section 351 of the Criminal Code Act.

In this case, the petitioner was convicted under section 342 of the Pakistan Penal Code for indecent assault on his wife. On appeal against conviction, it was argued on behalf of the petitioner that the conviction cannot stand because Bukulunnessa is his legally married wife. This contention was rejected by the trial Magistrate. On appeal, learned sessions judge was of the opinion that the story of marriage between Bukulunnessa and Kazeen has not been made reasonable and probable. The judge further observed that:

If the defence could have made the story of Bakul's marriage with the accused Kazeem reasonable and probable then of course the intent of the accused to outrage the modesty of Bakul could have been missing.

The counsel to the appellant produced order and decree showing that a decree has been passed declaring Kazeem Sarder entitle to restitution of conjugal rights vis-à-vis his wife. The Appeal Court was of the view that the said decree, as it stands, creates a grave doubt regarding the controversial factum of marriage between the accused and Bukulunnessa and that being the position of the Appeal court felt it would be unsafe to deny the benefit of the doubt and uphold his conviction under 354 of the Pakistan Penal Code. The order and sentence was set aside.

It was decided by the court in this case that an assault is any act by which the accused intentionally or recklessly causes the complainant to apprehend immediate and unlawful personal violence.

The court held a 'battery' in the instant case to be an act by which the accused intentionally or recklessly inflicts unlawful personal violence upon the complainant.

In the above case, the accused person attempted to remove a girl's shoe from her foot because it gave him sexual gratification. Streafield rejected an argument that the accused's indecent motive made this an indecent assault. The court held that there was no circumstances of indecency.

The court in this case held that touching the bottom of a girl's shirt was not indecent, though, it may have an indecent purpose.

The court in this case, convicted a woman on an indictment charging her with having indecently assaulted a boy of twelve by having instigated and induced the boy to have connection with her whereby the boy caught venereal disease. It was argued on behalf of the appellant that section 62 of the Offences against the Person Act, 1861 does not cover the indecent act of a woman. The Court of Criminal Appeal upheld the conviction of the woman and rejected the submission that the words 'whoever'...shall be guilty of any indecent' to section 62 do not include a woman.

The accused person in the instant case was urinating by the bank of a river where there were some four girls varying in age from six to nine. As he was doing so, one of the girls aged nine, passed him. The accused with his penis exposed, said to the girl, 'touch it', and the girl touched the penis. The accused was charged before the magistrate with indecent assault on the girl and the charge was dismissed. On appeal by the prosecutor by way of case stated to a Divisional Court, the court held that the accused person was not guilty where he invited a nine-year girl (who could not give an effective consent) to touch his exposed penis. Lord Goddard said:

The question is whether that conducts amount to an indecent assault...Assault can be committed, without there being battery, for instance, by a threatening gesture or a threat to use violence against a person, but I do not know any authority which says that where one person invites another person to touch him that can amount to an assault. The question of consent or non-consent arises only if there is something which, without consent, would be an assault on the latter. If that which was done to the child would have been assault if done with her consent and is of an indecent nature, because she cannot consent to an indecent assault. But before we come to the question whether there was an indecent assault, we must consider whether there was an assault, and I cannot hold that an invitation to somebody to touch the inviter can amount to an assault on the invitee.

In this case, the complainant, a boy of fourteen years, declined the accused person's invitation to touch his penis. The accused took the complainant's arm and dragged him towards himself. The court held that the act of pulling another towards oneself is not indecent, but the act could not be divorced from its circumstances.

In this case, the accused person put his arm around his eleven years old daughter's shoulders on two separate occasions, and led the girl upstairs. He exposed himself to the girl and told her to masturbate him. The defence was hinged on two grounds. First, it was argued that on the first occasion, the child neither resisted nor objected to her father's putting his arms around her shoulders. On the second occasion, she knew of her father's intention, although, she never wanted to accompany her father upstairs. It was further argued that the facts of the case disclosed a mere invitation by the accused person to the child to touch his person and that she was ordered by him with all the weight of parental authority to masturbate him, so that her act was involuntary and in the circumstances, there was no assault.

On behalf of the accused person, it was argued that the facts did not disclose any hostile act as the placing of his arm round the child's shoulders was an independent transaction from the consequent indecency and, that at any rate, it was not a hostile or unfriendly act. The court reluctantly, found that there was no compulsion or force on the child and therefore no indecent assault. Lord Goddard, C.J. said:

Before you can find that a man has been guilty of an indecent assault, you have to find that he was guilty of an assault, for indecent assault is an assault accompanied by indecency, and if it could be shown here that the respondent had done anything towards this child which by any fair use of language could be called compulsion, or had acted...in a hostile manner towards her -- that is with a threat or gesture which could be taken as threat, or by pulling a reluctant child -- that would undoubtedly, be assaults, and, if it was accompanied by an act of indecency, it would be indecent assault.

In the case above, the appellant was charged with attempted rape only. He was found not guilty of that offence but guilty of indecent assault. It was argued on behalf of the Crown that although the appellant was not actually charged with the offence of indecent assault, that he was rightly convicted of that offence by reason of the provisions of section 58(1) of the Criminal Procedure Ordinance which reads:

58(1) of the Criminal Procedure Ordinance.....when a person is charged with any offence, and part of the charge is proved but the part which is proved amount to a different offence, he may be convicted of the offence which he is proved to have committed, although, he was not charged with it

The court held that the charge of attempted rape is indivisible. Consequently, part of it cannot be proved to have committed, although, the accused was not charged with it.

In this case, the defendant was trying to extinguish a fire by laying on it with a hose. The plaintiff, a bystander, thought the hose should be directed elsewhere, but the hose touched the defendant on the shoulder to attract his attention whereupon the defendant gave him into custody. The Court of Exchequer held that unless the plaintiff had a hostile intention, he had not committed a battery and consequently the defendant was unjustified in giving the plaintiff a custody.

The English Court of Appeal held in the case above that an indecent act done to a girl of fifteen, with her consent and without hostility is an indecent assault (i.e. battery).

In the instant case, the touching of naked boys under sixteen years by the accused person who was taking pornographic photographic was held not to be indecent by the court since the touching was merely to indicate a pose.

The English Court of Criminal Appeal held in the instant case that:

*It is quite clear that physical contact may not be necessary. If two men put themselves in such a position that it can be said that a gross indecent exhibition is going on, they can be found guilty of committing an act of gross indecency.
*

The law is that under section 217 of the Criminal Code, the prosecution must prove that the accused person committed an act of gross indecency with another person or that the accused procured another male person to commit an act of gross indecency. The decision of the court in the instant case is that the evidence must make it clear that they were acting in concert.

The position of the law is that the prosecution can also prove that the accused person attempted to procure the commission by another person of an act of gross indecency with himself by writing a letter to the other person. In this circumstance, it is no defence for the accused person to argue that the letter did not reach the person, if by the nature of its content, it is an invitation of another to the commission of an act of gross indecency.

It is also the law that the prosecution can prove that the accused person committed the act of gross indecency by inciting another to procure the commission of an act of gross indecency. It is no defence for the accused person to argue that at the time of the incitement, there was nobody in view who is to be incited.

The court in the instant case, convicted a wife as principal in the second degree because her husband raped a maid. This is because the position of the law is that in every case, where a person is incapable of committing rape, he or she may be charged with the offence by virtue of the provision of section 7 of the Criminal code Act for aiding, counselling or procuring the commission of the offence.

The position of the law is that in rape, carnal knowledge must be proved. It is not necessary to prove that the hymen was ruptured or that there has been an emission of semen. The slightest penetration of the vagina is sufficient.

The decision of the court in this case is that the act of sexual intercourse which follows is part of the offence itself, so that aid given after penetration makes the aider a party to the offence.

The accused person in this case, entered a lady's room uninvited. He took off his clothes, and expressed a desire to have sexual connection with the lady and he actually caught hold of her. The court held that these facts did not constitute the offence of attempted rape because they merely indicated that the accused wanted to have and had made preparation to have connection with the complainant.

The court held in the above case that in a charge of the offence of indecent assault, where consent is raised as a defence, the onus of proving lack of consent is on the prosecution.

In the instant case, the Court of Criminal Appeal held that if the facts are such that the jury can reasonably find consent, the judge should direct the jury on the question that the onus of negating or disproving consent is on the prosecution, as well as the case bearing on the question of consent.

The court decided in this case that only consent freely given without force, fear or fraud and by a person of full capacity will afford a defence.

The accused person in this case, was convicted at the Surrery Quarter Session upon an indictment charging him with indecent assault and common assault on Norah Eileen Harrison. He was sentenced to eighteen months' imprisonment with hard labour upon the count for indecent assault. He appealed against his conviction alleging that the chairman misdirected the jury in the summing-up and the reply which he gave to a question put to him by the jury. The defence was that it was the duty of the prosecution to prove absence of consent and the fact that the girl had consented to everything that was done by the appellant. Evidence adduced showed that the appellant was addicted to a form of sexual perversion. During a series of telephone conversations, he had made suggestions to the prosecutrix which meant that he had intended to beat her. The evidence of the appellant and that of a woman who testified on his behalf showed that the prosecutrix had expressed her willingness to submit to the kind of conduct to which he was addicted. The Court of Appeal held inter-alia:

We have no doubt that the acts proved in the present case were such that the jury might reasonably have found consent. It is indeed, difficult to reconcile some of the admitted facts with absence of consent. It was therefore of importance (if consent was in issue) that there should be no possibility of doubt in the minds of the jury upon questions whether it was for the crown to negative consent or for the defence to prove it. A second observation which may fairly be made is that consent, being a state of mind, is to be proved or negative only after a full and careful review of the behavior of the person who is alleged to have consented.

The court held in the above case that where the other ingredients of rape are present but the fact of penetration cannot be proved, the accused person may be convicted of attempted rape.

The position of the law in this case is that for the prosecution and/or commencement of the offence of unlawful carnal knowledge of a girl under the age of 13 years, or the prosecution and/or commencement of attempts to have unlawful carnal knowledge of a girl under the age of 13 years, it must be commenced within two months after the offence is committed.

In this case, the appellant was charged with buggery. There was evidence that the complainant had been sexually interfered with by someone on the day in question and also indecent photographs were found in the appellant's room. The defence was that the complainant had told the appellant that he had already been on the bed with a man for E1 and that he would do the same for him for E1. The appellant denied knowledge of the photographs and suggested that they had been planted on him by the complainant in annoyance at the rejection of the offer. The trial judge allowed the appellant to be cross-examined on his previous conviction for homosexual offences. The appellant was convicted, and he appealed against his conviction alleging that the trial judge should have excluded evidence of his previous record by virtue of section 1(f) (ii) of the Criminal Evidence Act 1898. Viscount Dilhorne held:

That the section permits cross-examination of the accused as to character both when imputations on the character of the prosecutor and his witness are cast to show their unreliability a witness independently of the evidence given by them and also when the casting of such imputations is necessary to enable the accused to establish his defence. In rape cases, the accused can allege consent without placing himself in peril of such cross-examination.

The Crown Court in the above case ruled that questions about the complainant's sexual relationship with other men should be allowed only where they might reasonably lead the jury, properly directed in the summing-up, to take a different view of the complaint's evidence from that which they might take if the question of series of questions was or were not allowed.

The court held in this case that if the questions are relevant to an issue in the trial in the light of the way the case is being run, for instance, relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted.

The court in the instant case, held that a boy under the age of fourteen years is presumed by the law to be incapable of rape as a principal in the first degree.

In this case, evidence was not allowed to be led to show that the boy is in fact, physically capable of the crime. The court, however, stated that the boy can be guilty as a principal in the second degree if he aids and abets another in the commission of the crime.

The position of the law is that it is not the rule of law that in sexual offences, an accused person should not be convicted on the uncorroborated evidence of a prosecutrix. However, the proper direction is that it is not safe to convict on the uncorroborated evidence of the prosecutrix, but the jury may, after paying attention to the warning, nevertheless, convict the accused person if they are satisfied of the truth of the evidence.

The appellant in this case was charged of defilement of a girl contrary to section 218 of the Criminal Code. The prosecutrix made conflicting statements during the preliminary inquiry which the learned trial judge considered to be minor discrepancies. The Supreme Court held:

The learned trial judge did not appreciate that the inconsistencies coupled with the girl's (complainant's) admission at the trial that her evidence to the magistrate was untrue made her a witness whose evidence should have been treated with the greatest reservation, even if adequate corroborative evidence had been forthcoming.

The position of the law is that corroborative evidence must implicate the accused person in some material particular in respect of the offence charged. In the case above, the accused person bought bananas from one of the two girls who were hawking bananas. He told them to return in the evening for the money. When they returned, the two girls alleged that the accused person had intercourse with them. The court held that an admission that the accused bought bananas from one of the girls was not corroboration because it did not implicate the accused in any material particular in respect of the offence charged.

The position of the law is that it is an offence for an owner of a premises to induce or knowingly suffers to resort to or be on those premises, for the purpose of having unlawful sexual intercourse with men or with a particular man, a woman who is defective. But under section 219 of the Criminal Code Act, it is an offence for a householder to permit a girl under thirteen and below sixteen years to be on the premises. The girl need not be a defective. The householder may escape liability if he proved that he believes, on reasonable grounds, that the girl was of or above the age of sixteen years. The punishment for the offence under section 219 of the Criminal Code is life imprisonment. But by virtue of the proviso to section 219 of the Criminal Code, ignorance of age is only a defence if the girl is under sixteen years. Therefore, if the girl is under thirteen years, liability would be strict. In the above case, the court held that the accused may be convicted, although, he believes in good faith and on reasonable grounds that the girl he is taking is over thirteen years.

In the instant case, the court held that Sodomy and buggery involve anal sex. The term, unnatural offence include sodomy or buggery and bestiality.

The unnatural offence at common law was known as buggery. It consists in intercourse per annum. The court held in the above case that other unnatural forms of intercourse are not within the meaning of the term, but may amount to indecent assault or an act of gross indecency under section 13 of the Sexual Offences Act, 1956.

The court in this case held that unnatural offences may be committed by a man with a man or woman.

It is also the decision of the court in the above case that the offence can be committed by a husband against his wife.

In this case, the court decided that penetration is an essential element of the offence, but emission need not be proved.

The position of the law is that it is an offence for a person to commit buggery with another person or with an animal by virtue of section 12 of the Sexual Offences Act, 1956. However, by the provision of section 1 of the Sexual Offences Act 1967, it shall not be an offence for a man to commit buggery or gross indecency with another man provided that:

i. The act is done in private

ii. The parties consented

iii. The parties have attained the age of twenty-one

To establish these conditions, the prosecution must prove them beyond reasonable doubt. In the above case, the court held that the jury must take into account all the circumstances -- the likelihood of a third person coming on the scene and so on.

The law is that in the offence of buggery, where the complainant is under twenty-one, the fact that the accused person believed her to be over twenty-one years shall not be a defence.

By virtue of the provision of section 1967 of the Sexual Offences Act, the Crown has the onus of proving that the act was:

i. Not done in private; or

ii. Without consent; or

iii. That any party was under twenty-one.

In the above case, the decision of the court is that where these facts are in issue, the evidential burden is on the accused person to raise them.

In English law, it is a defence to show that a party to the commission of an offence is under twenty-one years, he continues to be guilty of an offence, any proceedings against him for participating in any buggery or gross indecency may not be instituted except with the consent of the Director of Public Prosecutor.

In this case however, the court decided that consent is not required on a charge of intent to commit the offence.

The court in this case, the House of Lords held that it is an abuse of process to prosecute an accused person under section 14(1) of the Sexual Offences Act, 1956 if that would circumvent the time on a prosecution for unlawful intercourse with a girl under the age of 16 in respect of which no prosecution may be commenced under section 6(1) by virtue of section 37(2) and Schedule 2 to the said Act.

The law in the offence of buggery in the above cases is that the person affecting the intercourse is usually referred to as the agent and the person on whom it is affected is the patient. Where the person on whom the buggery is affected is a person within the age of discretion, that is, under fourteen years, it is not a felony on him, but only on the agent. Thus, where the agent and the patient are within the age of discretion, the offence is not committed.

In the instant case, the Court of Criminal Appeal ruled that three boys under the age of fourteen with whom the accused person had committed buggery were not accomplices because they are unable to commit such offences at law.

In this case, a boy under ten, who kept watch while the agent committed buggery on the patient was held not to be an accomplice in the buggery but only on the lack of evidence of guilty knowledge.

The decision of the court in the instant case was that the act in child's mouth does not constitute the offence of buggery.

The court in this case however, convicted the accused person of buggery and sentenced him to eight years imprisonment because he put his penis into the complainant's mouth, and forced the complainant into a kneeling position and he buggered the complainant.

In this case, the accused person had sexually excited the dog and compelled his wife by duress to submit to the animal having connection with her per vagina. The man was convicted of aiding and abetting his wife to commit buggery with a dog. The decision of the court was that unnatural offences is an intercourse per annum or per vagina by a man or a woman.

The court held in the instant case that sexual intercourse per nose with a bullock is an unnatural offence within the meaning of section 377 of the Pakistan Penal Code (equivalent to section 377 of the Indian Penal Code and sections 284 of our Penal Code and 214 of our Criminal Code).

The law is that assault is an element of the offence of buggery. The decision of the court in this case is that consent negatives an assault.

In the instant case, in the course of committing the offence of buggery, a policeman came. The boys ran off but the appellant was convicted. The justices found that the appellant knew what he had done was seriously wrong, and that he was in serious trouble because he had done something seriously wrong. In dismissing the appellant's appeal the Queens's Bench Divisional Court held that:

The presumption relied upon by the appellant is no longer part of the law of England. It is unreal, contrary to common sense and in principle objectionable. It is not part of the general law that a defendant should be proved to appreciate that his act is seriously wrong. The requirement that a child must understand that his act is seriously out of step and is continually obscure. The presumption was not intended to displace the general rule that ignorance of the law affords no defence. The cases indicated that the presumption may be rebutted by proof that the child was of normal mental capacity of his age; the effect of that was that a defendant under 14 is assumed to possess a sub-normal mental capacity and so be doli incapax. There could be no respectable justification for such a bizarre state of affair... The conditions under which the presumption was developed in the earlier law have no application. The earlier decisions considered by the court proceeded on the unargued premise that the presumption was part of the fabric of English Law.

Defamatory matter is a civil injury and a criminal offence. The court in this case, stated that it is ranked amongst criminal offences because of its supposed tendency to arouse angry passion, provoke revenge, and thus endanger the public peace.

But in the cases above, the court held that it is not necessary for the prosecution to show that a breach of the peace was likely to result from the defamatory matter neither is it necessary that it should be calculated to lead to a breach of the peace.

In the cases above, the court held that to impute immoral or obscene conduct to a person is defamatory of that person. It is also the decision of the court that to allege that a person is a thief, or to impute to him the commission of any offence is also defamatory.

The law is that where it is alleged that a person has planned to kill some named persons is defamatory.

In this case, the decision of the court is that where it is merely to publish of another that he owes money is not defamatory. But, if an inability to repay is implied, it becomes defamatory.

In the instant case, A made an oral statement to a village audience to the effect that the Olu of Warri had ordered each person to pay some money for the Western Region free compulsory primary education scheme. The magistrate found that the Olu of Warri had said nothing of the kind and that the words were defamatory. On appeal, the High Court held that the words spoken were, without any innuendo, not defamatory of the Olu for they could not reasonably be said to expose him to hatred, ridicule or contempt.

In the instant case, A made an oral statement to a village audience to the effect that the Olu of Warri had ordered each person to pay some money for the Western Region free compulsory primary education scheme. The magistrate found that the Olu of Warri had said nothing of the kind and that the words were defamatory. On appeal, the High Court held that the words spoken were, without any innuendo, not defamatory of the Olu for they could not reasonably be said to expose him to hatred, ridicule or contempt.

In the instant case, A made an oral statement to a village audience to the effect that the Olu of Warri had ordered each person to pay some money for the Western Region free compulsory primary education scheme. The magistrate found that the Olu of Warri had said nothing of the kind and that the words were defamatory. On appeal, the High Court held that the words spoken were, without any innuendo, not defamatory of the Olu for they could not reasonably be said to expose him to hatred, ridicule or contempt.

The court in this case held that:

The dead have no rights and can suffer no wrongs. The living alone can be subject of legal protection, and the law of libel is intended to protect them, not against every writing which gives them pain, but against writings holding them up individually tl hatred, contempt, or ridicule. This, no doubt, may be done in every variety of way. It is possible under the mask of attacking a dead man, to attack a living one... If the object appeared clearly to be to bring James into contempt, it would I think, make no difference whether you said, 'James was the son of an adulterous murderess, 'or 'Mary Stuart was an adulterous murderess.

The decision of the court in this case is that in defamatory matter, the intent to injure family must be proved.

It is also the decision of the court in this case that in defamatory matter, the intent must be proved that there was a living member of the family of the deceased whose reputation may have been injured by the publication.

The court held in the instant case that the receipt of a defamatory document in the ordinary course through the post raised a presumption that the accused person who wrote it posted it and that by posting it, he delivered it with intent that it should be read by the addressee and that that amounted to publication under section 374 of the Criminal Code Act.

The position of the law is that if a person writes a libel which is afterwards printed, it is prima facie, at least, a publication of the libel by him. The court held in this case that a person who repeats rumours does so at his peril and is in no better position than his informants, and the evidence of the rumours is inadmissible.

The court held in the instant case that if a person is charged with publishing a defamatory matter knowing it to be false, it must be proved that he knew it to be false. But an exaggeration may be gross as to amount to a false statement.

The position of the law is that if the accused person pleads not guilty where he is charged for publishing a defamatory matter, he may show that the publication was not defamatory, or that he did not publish it or that it was privileged. But he cannot on such a plea, seek to prove the truth of the matter unless, he is charged with publishing the matter knowing it to be false. If he pleads justification, he must do so in the manner prescribed by section 6 of the Libel Act, 1843.

The court held in this case that where a person was charged with bigamy and the only evidence relied upon being two marriage certificates, one of the first and the other the second marriage, that evidence was not sufficient to prove that the first wife was alive at the time of the second marriage.

In the instant case, the accused person while he was a Christian, married under the Marriage Act in 1950. He later became a Muslim and in 1960, he married again under the Islamic Law which recognizes polygamous marriages. The High Court held that these facts constituted bigamy under section 370 of the Criminal Code. Reed J. said:

However, after considering the authorities, I interpret section of the Criminal Code as follows: There must be a husband and wife living and one of them must 'marry' so that this second 'marriage' is 'void by reason of its taking place during the life of such husband and wife.' If the first marriage was polygamous, the second marriage could not be void because it, the second marriage, took place during the life of the husband and wife. Therefore, the first marriage must be a monogamous marriage 'good and valid in law' as defined by section 34 of the Marriage Ordinance.

The court in the instant case, held that where a party relies on the first marriage to impugn the validity and/or veracity of the second marriage, the onus is on that party to show that the marriage was actually solemnized in a manner recognized by the law of the parties or of the place of celebration. See also Morris v. Miller (1967) 4 Burr 2057.2 (1808) 10 East 282.

The court held in the above case that a prima facie evidence is required to prove a lawful marriage.

The decision of the court in the instant case is that once the parties are proved to have gone through a ceremony of marriage, there is a rebuttable presumption of law that the marriage is valid. But if the defence raises a doubt as to the validity of that marriage, the defence is entitled to the benefit of that doubt.

The decision of the court in the instant case is that once the parties are proved to have gone through a ceremony of marriage, there is a rebuttable presumption of law that the marriage is valid. But if the defence raises a doubt as to the validity of that marriage, the defence is entitled to the benefit of that doubt.

The court held in the above case that a potentially polygamous marriage does not constitute a valid first marriage for the purposes of the law of bigamy, for the objective of the law is to preserve the nature of monogamous marriage.

In this case, the form of marriage by Muslim law which the accused went through with the second wife was void because it was invalid by virtue of section 35 of the former Marriage Ordinance. The former Northern Nigeria High Court, while considering bigamy held that the word "marries" does not refer to contracting a valid marriage but going through a form of marriage known to and recognized by the law. The court further stated that if the first marriage was polygamous, the second marriage could not be void because it took place during the life of the husband and wife. If the first marriage was monogamous, then a second marriage, whilst the first marriage subsists, is a bigamous marriage, therefore void.

The law is that parties to a marriage must give their correct names. This is because marriage under false name is an invalid marriage. If a party is known by other names, such names should be disclosed. This is to ensure that all the identities of the parties are disclosed. The reason being that a marriage contracted under a wrong name may be invalidated. Here, it must be shown that the concealment of the identities of the parties was deliberate.

The parties in the instant case, celebrated their marriage at the church of the Holy Name of Mary, Abatete. The marriage ceremony was officiated by Reverend Nugh Roche, who issued the parties a 'certificate of marriage', contrary to the form prescribed in Form E in the First Schedule to the Marriage Act. In 1971, the wife petitioned for judicial separation. The husband, by preliminary objection, challenged the jurisdiction of the court to adjudicate on the petition on the ground that the marriage was a customary marriage, subsequently solemnized in the church. The respondent vehemently denied contracting a monogamous marriage with the petitioner. The trial court held that there was a valid marriage between the petitioner and the respondent in 1961. The judge held that the marriage was valid monogamous marriage because that was the intention of the petitioner who believed that the church blessing or marriage had that effect. On appeal, the Supreme Court said that the petitioner failed to prove that there was a monogamous marriage. The Supreme Court therefore concluded that the trial court had no jurisdiction to hear the petition. On proof of marriage, the Supreme Court stated as follows:

To our mind, this document described by the person who wrote it as 'Certificate of Marriage' is not in the form prescribed in Form E in the First Schedule to the Marriage Act. It could not even be regarded as a public document or could it be described as the original as a certified copy of any certificate, entry, or record of marriage.

In this case, a priest blessed a customary law marriage on the 17^th^ day of September, 1942. As evidence of the marriage, the priest issued to the parties to the marriage, a printed copy of a certificate in respect of that ceremony. The contention was that there was a valid marriage under the Marriage Act. The court rejecting this argument, held that the ceremony on the 17^th^ day of September was merely the blessing of a customary law marriage, and therefore, did not constitute a marriage.

The court held in the above case as invalid a marriage performed by a French cure of two French Canadians in France in the mistaken belief that it had been preceded by a civil ceremony as required by a French law.

The court in this case, recognized a marriage performed in Argentina between a man who was there and a woman in England who was represented there since the representative by proxy was permitted by Argentina, though not by English law.

The court held in the case above that a provision of French law which required a person under a certain age to make an "acte respectuer" and ask his parents' permission to marry, though not complied with, did not render void a ceremony celebrated in England.

The Appeal Court in the instant case stated that:

The onus of proving that a domicile has been chosen in substitution for the domicile of origin lies upon the party who asserts that fact and this must be sown with perfect clearness and it depends on the facts. Thus, a decision on the question of domicile of choice requires a detailed analysis and assessment of available facts to discover the mind of the party concerned; and for that purpose, it should be realized that residence and domicile are two distinct things although residence may be some prima facie proof of domicile, it is by no means to be inferred from the fact that of residence that domicile results, even though the party does not have any other residence in existence or in contemplation.

The court held in this case that adopting parents and adopted children are within the relationship as regards the offence of incest.

The position of the law as regards the offence of incest is that where a female is charged of the offence, the onus is on the prosecution to prove that her consent to the intercourse was voluntary. In the above case, the court held that a mere submission was not enough.

In the case above, the accused person, through fake representation, obtained goods from someone when he falsely claimed that it was the owner of the goods who authorized him to take the goods. Originally, he had no fraudulent intent but it was later that he appropriated the goods to his own use. He was found guilty of stealing by conversion.

The court held in this case that if A intending to steal a book from B's briefcase, begins to take out the book whereupon B suddenly shouts at him and he drops that thing back into the briefcase, A's conduct amounts to stealing and not merely an attempt to steal.

The accused person in the instant case, was employed by a Native Administration, and in charge of two safes in which he kept money. He moved a sum of money in which he had falsely entered in his cash book as paid out from one safe to another in order to partly offset a deficit of the sum in his hands. When the money in the second safe was checked, the deficit was discovered. If he had not moved money from one safe to the other, the deficit would have been increased and he did not disclose his conduct. He was convicted of converting the money. On appeal against conviction, the court, quashing his conviction, held that moving the money from one Native Administration safe to another so that it should be included in the checking of the money in his hands for his employers cannot possibly be regarded as conversion of the money to the appellant's own use.

The decision of the court in the case above was that where D recovered 100,000 US dollars and kept the rest to himself would amount to conversion.

In this case, the appellant, an assistant manager of an electrical goods shop, lied to the Manager of the store that two cheques were valid, with the result that some goods worth some amount of money were supplied to a rogue. The appellant and the rogue were convicted of theft. They appealed to the Court of Appeal (England) Criminal Division) which allowed their appeal. The Crown appealed to the House of Lords. Two problems that arose in this case were:

i. Whether it is sufficient that D assumes a right of owner, not all the righrts of the owner?

ii. Can D assume rights when the alleged assumption is an act done with the consent of the owner?

The House of Lords answered the problems in the affirmative.

The law is that a servant who receives money for his master and converts it, is guilty of stealing. In the above case, a Chairman of a District Council received money on behalf of the Council and used it for his personal needs. The court held that he was guilty of stealing.

The position of the law in the instant cases is that if a servant acting outside the scope of his employment, uses his master's tool to obtain money for himself, it would not amount to stealing. Also, a chauffeur who used his master's car to ply for hire without his master's permission is not guilty of stealing the money which he received. This is because he did not receive the money for the master.

In the above case, D was employed as a shop master by V. D sold goods above the fixed price and entered the fixed price in the cash sales book and kept the difference for himself. He was convicted of stealing the difference and of making a false entry with intent to deceive and to deprive contrary to section 438(b) of the Criminal Code Act.

The court held in the instant case that where D has authority to purchase goods for P and a discount is granted, part of which D misappropriates, it would amount to stealing.

In this case, D was given money to buy cocoa, grade the cocoa and deliver it to V. D bought the cocoa, graded, and sold it to Y. D was convicted of stealing the cocoa.

In the case above, A hired a bicycle from B for five months under a written agreement. A sold the bicycle to another person. A was convicted of stealing because the selling of the bicycle amounted to a fraudulent conversion.

The court in this case held that where D entrusts money to A for payment to C without indicating a time limit for payment, an unjustifiable delay by A in paying the money to C is not by itself a fraudulent conversion of the money. However, where A was asked to produce the money and he was unable to do so or he made such admission from fraudulent conversion, he would be guilty of stealing by conversion.

By virtue of the provision of section 383 of the Criminal Code as regards consent in stealing, the court has held that in the cases above that absence of consent is implicit in the definition of stealing, that is, the taking or conversion of a thing must be without the consent of the owner.

In this case, Mr. Occhi, was an Italian. He lived in England and wanted a taxi to take him to an address in Ladbroke Grave. Mr. Occhi offered less than what was the correct fare for the destination. The accused person told Mr. Occhi that the money was not enough. While Mr. Occhi held his wallet for the accused, the accused helped himself to an excess amount of money from the wallet. The accused was charged for the theft of the excess sum of money contrary to section 1(1) of the English Theft Act 1968. The accused was convicted as charged. He appealed against his conviction, arguing that in both the House of Lords and in the Court of Appeal that Mr. Occhi had consented to the taking of the excess money. Lord Viscount Dilhorne was of the opinion that under the Larceny Act 1916, section 1(1) of the English Theft Act 1968, it was necessary to prove that the property alleged to have been stolen was taken without the consent of the owner, but that these words are omitted in the Theft Act 1968. His Lordship, in dismissing the appeal, further held that:

Belief or the absence of belief that the owner had with such knowledge consented to the appropriation is relevant to the question of dishonesty, not to the question whether or not there has been an appropriation. That may occur event though the owner has permitted or consented to the property being taken. So proof that Mr. Occhi had consented to the appropriation of the excess money from his wallet without agreeing to paying a sum in excess of the legal fare does not suffice to show that there was not dishonesty in this case. There was ample evidence that there was.

The law is that consent obtained by threats, intimidation or fraud is not consent. But if fraud induces consent to the acquisition of ownership by the accused person, the offence may be false pretences and not stealing. In the above case, the accused person obtained cheques by means of forged vouchers. He paid them into his account and cashed them. The court held that he was not guilty of stealing the money but guilty of obtaining the cheques by false pretences.

To determine whether there is consent or not, it is necessary to distinguish between making the thing easy for the thief to take and giving the thing to the thief. The court held in the cases above that there is consent in giving the thing to the thief to take.

In this case however, the court held that there is no consent where the thing was made easy for the thief to take.

The position of the law is that in order to constitute stealing, there must be an element of fraud. By virtue of the provision of section 383 of the Criminal Code, six intents are set out which would make a taking or conversion fraudulent. In considering whether or not there existed one of the fraudulent intents, the court held in the above case that the test is what was the intent of the accused person at the time of the taking or conversion.

The position of the law is that if the intent is merely to deprive the owner temporarily, it is not stealing unless there is also any of the other intents set out in section 383(2) of the Criminal Code. In the cases above, the court held not guilty of stealing where H took W's goods with intent to induce her to resume cohabitation.

The court in the cases above however, held that if it can be shown that when A removed the property, he intended to deprive B permanently of it, but afterwards changed his mind and returned the thing, it is stealing.

In this case, a policewoman placed her handbag on the floor in a cinema. The accused person who sat behind her, took the handbag and search it for the money which he intended to steal. There was no money in the bag but cosmetics, tissues, etc. The accused quickly replaced it. His conviction for stealing the handbag and its contents was quashed because he did not intend to deprive the owner of the bag permanently of them. See also C.O.P. v. Akpata (1967) 1 ALL N.L.R. 235.

The accused person in the case above, rummaged through the door of a van in order to find whether there is a valuable thing in it to steal. He was charged with attempted theft of the equipment. The judge directed the jury that they could convict the accused persons if the purpose of their looking into the van was to ascertain if its contents were valuable to steal from it. The English Court of Appeal relying on the decision in Easom held that this was misdirection. The court said

It cannot be said that one who has it in mind to steal only if what he finds is worth stealing has a present intention to steal.

In the instant case, a servant took fat from his master's store, and brought it to the candle-room. He placed it on a scale and desired his master to buy it as fat sent by a butcher. He was convicted of larceny of the fat.

In the instant case, a servant took fat from his master's store, and brought it to the candle-room. He placed it on a scale and desired his master to buy it as fat sent by a butcher. He was convicted of larceny of the fat.

In the instant case, a servant took fat from his master's store, and brought it to the candle-room. He placed it on a scale and desired his master to buy it as fat sent by a butcher. He was convicted of larceny of the fat.

In the instant case, a servant took fat from his master's store, and brought it to the candle-room. He placed it on a scale and desired his master to buy it as fat sent by a butcher. He was convicted of larceny of the fat.

In this case, a dresser of skins removed skins from his employer's warehouse to a different part of the premises in the pretence that he had not been paid for work done on them. As he merely intended to obtain payment for the pretended work, it was held that he was guilty of larceny.

The accused person and some others in the above case, conspired to obtain payment for some bags of cocoa belonging to a Marketing Board by representing to it that the cocoa came from the United Africa Company. The court held that they could not be convicted of stealing those bags of cocoa since they did not intend to deprive the Board of the property in the cocoa.

The court held in this case that motive of gain is not essential in deciding whether a permanent deprivation is fraudulent.

The decision of the court in the cases above is that an owner of land has a special property over things found on his land provided he intends and has the power to exercise physical control over those things.

In this case, the accused person, a turnstile operator at Wembley Stadium when admission was by ticket only accepted a bribe from a member of the public and allowed him to enter the ground without a ticket. The accused was charged with theft for the sum of bribe he received, being the property of his employers. The justices ruled that as the money had been received in the course of employment, it belonged to the employers. The accused was convicted. On appeal against conviction, the court held that the defendant was no more than the recipient of a bribe; that by no stretch of language could it said the money belonged the employers; that therefore, the definition of theft in section 1 of the theft Act 1968 was not satisfied.

The appellant in the instant case, sold an unsatisfactory video recorder which was returned to him for repair. After some time, the purchaser issued a summons claiming the price of the video as the return of money paid for defective goods. Two days later, the summons was served on him, the appellant sold the video to another person. The judge directed the jury that it was for them to decide on the evidence whether the property belonged to the original purchaser when it was sold by the appellant to another. The appellant was convicted of theft and he appealed against conviction. The court, allowing the appeal that:

The onus was on the prosecution to prove as a matter of law that the video did not belong to the appellant when he sold it to another. In effect, the trial judge had withdrawn the issue of law from the jury. The relevant law, which was contained in the Sale of Goods Act 1979, was complicated but the judge had made no attempt to explain it. For centuries, juries had decided civil actions on points arising under the law of sale of goods. There was no reason why this jury should not have had the relevant law explained to them and in the absence of such an explanation, it was impossible for them to do justice in the case.

The court held in the instant case that the finder of a lost article has a special property in the article.

It is also the decision of the court in this case that the pledgee of goods has a special property in the goods pledged.

The position of the law is that fraudulent intent is not established where a creditor takes his debtor's property intending to keep it by way of security for payment of the debt. However, if the pledger refuses to redeem the goods upon demand by the owner, it may amount to stealing. In addition, it would amount to stealing where the pledge or security is given to a third party.

In this case, A used B's car for three days without B's knowledge and permission. There was a gallon of petrol in the car when A removed it and this A used for driving. A was charged with stealing but the court was of the opinion that the wear and tear to the car caused by using the car in the way A did was too slight to establish an intent to deal with it in such a manner that it could not be returned in the condition in which it was at the time the car was removed. The court held however, that A could properly be convicted of stealing the petrol in the car.

The accused person in the instant case, collected money from certain persons as deposits for sending them to America on scholarship. He did not send them and he did not refund the money on demand or at a reasonable time. He was convicted of stealing. See also R. v. Sagoe (1963) 1 All N.L.R. 290; (1963) L.L.R. 23.

In this case, the accused person received a loan from a Housing Corporation to build a house on a piece of land which he mortgaged to the Corporation. He used the money instead to contest an election. He was convicted of stealing because the money still belonged to the Corporation until he used it for the specific purpose for which he received it and it made no difference that he might have intended to repay it afterwards.

The position of the law in the instant cases is that if for instance, A gives B a sum of money to keep for him and B spends the money, being able and willing to repay the money both at the time of spending it and on demand, it would not amount to stealing. But if the person spends the money entrusted to him and does not repay it, the mere fact that he had hope or expectation of repaying the money is immaterial.

The court held in this case that where a bank manager grants an overdraft or unsecured loan to a customer, it would not amount to stealing.

In the instant case, the question was whether investors, who had subscribed money for investment in gilts by a company controlled by D, had an equitable interest in certain assets of the company. The court gave an affirmative answer to the question. The court in arriving at such conclusion, relied on the principle developed in the Chancery Court to the effect that where a trustee mixes trust money with his own, the beneficiaries have a charge on the fund, an equitable interest in the mixed fund. A dishonest withdrawal from the fund may amount to stealing it from the beneficiaries.

The position of the law in the instant case is that if a person has a bank account with credit in it, what he has is a thing in action. Thus, if D wrongfully caused its account to be debited, he appropriates or convers a thing in action belonging to E and is guilty of theft or stealing. An accountant of a company whose functions include drawing of cheques and s settling the company's debts, drew cheques on the company's account which he used to settle his personal liabilities. He was convicted of theft of the thing in action.

The court held in the case above that a person who has money in the bank is a banker.

In the instant case, a Magistrate in England held that it was theft to cut hair from a girl's head.

The court held in the instant case that blood and urine are property.

The decision of the court in the case above is that a University Hospital owned a patient's spleen and other body substances after they have been removed.

The position of the law in the instant case is that a finder of lost property and/or item does not convert if fraudulently if at the time of taking or conversion he does not know who the owner is and believes on reasonable grounds that the owner cannot be found.

The accused person in this case, removed and used some corrugated iron sheets belonging to the government. He was convicted for stealing. On appeal against conviction, the appellate court quashed his conviction because he acted in good faith and reasonably believed that the sheets were abandoned.

In this case, A received money from B in order to buy land in A's name and then transfer it to B. A bought the land but refused to transfer it to B. The court held that A is not guilty of stealing the money because he had used the money for the purpose for which it was intended. The court also held that A is not guilty of stealing the thing purchased because land is not capable of being stolen.

The position of the law is that at common law, a corpse cannot be the subject of ownership and therefore cannot be stolen. But a corpse may possess such peculiarity attributes as to justify its preservation on scientific or other grounds. If, therefore, a person has performed some work of skill on such a corpse in his lawful possession, it may be stealing for anyone to dispossess him of it.

The court in this case held that electricity is not property for the purposes of theft.

The court held in this case that if a person steals various items of property on various occasion each, those acts of stealing would be tried separately.

The court held in the instant case that section 152(2) of the Administration of Criminal Justice Act applies to a case where the gross sum is made up of particular items which are known.

The court held in this case that this exception does not apply to the offence of forgery.

The decision of the court in the case above is that section 197 of the Administration of Criminal Justice Act applies only to cases where the property is money and not any other kind of property.

The court held in this case that the mere proof of a general deficiency in accounts is not sufficient to warrant a conviction. This is because it may be that the money was spent in the master's employment, or it was stolen by some person other than the accused person, or lost through negligence. It must be proved that the accused person stole the money or some specific part of it.

In the above case, the accused person, a police officer, was investigating the theft of a cheque. He questioned X whom from the grape vine he heard knew something about it. X denied any knowledge of it. The accused then invited X t to the charge office and X agreed. The accused sat down and told X that X knew whether his is guilty or not, if he takes X to the charge office, X will be locked up till the investigation ends. That instead of X being locked in the cell for nothing if X is not guilty, he should try and give some money. When X said that he did not want to be locked up, the accused told X to give him part of the money demanded. The court held that these factors constituted an offence under section 406 of the Criminal Code Act.

The court in the instant case, defined menace as a threat of any action detrimental to or unpleasant to the person addressed.

The accused person in the instant case, a police constable, demanded money from a witness in order not to search his house under a search warrant and take him (the occupier), to the police station. In order to avoid inconvenience, the witness paid some money to the police officer. The police officer was held guilty of an offence under section 406 Administration of Criminal Justice Act. But where the appellant, a tax clerk, demanded and received some money from certain tax collectors who had failed to collect the sums due on some demand notices issued to them and he did this in order to suppress their breach of duty, the court held that his conduct did not establish an offence under section 406 of the Criminal Code Act.

The appellant in the instant case, a tax clerk, demanded and received money from some tax collectors who, having given demand notices, failed to collect the taxes due which amounted to a breach of duty and the appellant's aim of demanding the money was to suppress such a direction of duty. The court held that the act was outside the offence created under section 406 of the Criminal Code because the prosecution failed to prove that the tax collectors parted with their money as a result of threat of injury or detriment to them. The court further held that since there was no evidence that they would not be held liable for the full amount due on the notices, and the most the appellant could apparently do in the matter, was to pass the information on the District Officer.

The appellant in the instant case, a tax clerk, demanded and received money from some tax collectors who, having given demand notices, failed to collect the taxes due which amounted to a breach of duty and the appellant's aim of demanding the money was to suppress such a direction of duty. The court held that the act was outside the offence created under section 406 of the Criminal Code because the prosecution failed to prove that the tax collectors parted with their money as a result of threat of injury or detriment to them. The court further held that since there was no evidence that they would not be held liable for the full amount due on the notices, and the most the appellant could apparently do in the matter, was to pass the information on the District Officer.

The appellant in the instant case, a tax clerk, demanded and received money from some tax collectors who, having given demand notices, failed to collect the taxes due which amounted to a breach of duty and the appellant's aim of demanding the money was to suppress such a direction of duty. The court held that the act was outside the offence created under section 406 of the Criminal Code because the prosecution failed to prove that the tax collectors parted with their money as a result of threat of injury or detriment to them. The court further held that since there was no evidence that they would not be held liable for the full amount due on the notices, and the most the appellant could apparently do in the matter, was to pass the information on the District Officer.

The appellant in the instant case, a tax clerk, demanded and received money from some tax collectors who, having given demand notices, failed to collect the taxes due which amounted to a breach of duty and the appellant's aim of demanding the money was to suppress such a direction of duty. The court held that the act was outside the offence created under section 406 of the Criminal Code because the prosecution failed to prove that the tax collectors parted with their money as a result of threat of injury or detriment to them. The court further held that since there was no evidence that they would not be held liable for the full amount due on the notices, and the most the appellant could apparently do in the matter, was to pass the information on the District Officer.

In this case, a police officer investigated an allegation that the complainant had committed an offence. After the investigation, it was clear that the complainant did not commit the offence. The police officer, however, demanded money from the complainant stating that unless he paid, he would be charged with the offence. The complainant reported the matter to the police. The police gave the complainant a marked currency notes in order to trap the police officer. When the police officer received the money, he was arrested. The trial court found him guilty of the offence of demanding with menaces under section 406 of the Criminal Code Act.

On appeal against conviction, the appellate court set aside the conviction because the court felt that the complainant gave the money to the appellant not because of any threat of injury or detriment to him but simply to implicate the appellant as the court said the threats could not and did not in any way operate on the complainant as he was not only aware that he has committed no offence for which he could be prosecuted, but he was also aware, according to evidence, that the appellant knew very well that he had committed no offence.

The court held in the above cases that threat of any kind is sufficient provided it is calculated to unsettle the mind of the person to whom it is made and take away from his acts that element of voluntary action which constitutes consent.

In the instant case, A and B went to the house of the complainant who was a prostitute. They threatened that A would hand himself there and unless the complainant paid A the some money for infecting him with gonorrhea. The complainant was greatly alarmed and her condition bordered on hysteria. Her fear was that if the threat was carried into effect, the police would come and arrest everyone in the house and would say that she killed A. She gave A the sum of money which was all she could obtain. The court held that A's conduct amounted to a threat of detriment within the meaning of section 406 of the Criminal Code Act.

The accused person, a police constable, by his vintage position, heard that the victim's relations were no longer interested in the prosecution of the case. He took advantage of that and called on the victim's house to demand for some kola, otherwise, he would open the case of the victim again. Anxious to set a trap, his victim gave him marked money and reported the matter. The accused was charged with extortion under section 291 of the Penal Code. The Supreme Court held that since the victim parted with his property not because of any fear that the accused had put in him, no offence was committed.

The decision of the court in the cases above is that the threat should be one calculated to cause alarm to a person of reasonably sound or ordinarily firm mind, and a liberal construction should be placed on the requirement.

The accused person, a police officer in the instant case, threatened to arrest the complainant and charge him with unlawful possession of Indian Hemp. They both knew that the complainant did not commit the offence. The Supreme Court, reversing the High Court judgment, held that an offence has been committed under section that an offence has been committed under section 406 of the Criminal Code Act. The Apex Court further held that the proper test should be whether the subsequent act of the victim after the threat is voluntary or whether it was against his free will. If a reasonable man complied with the terms of the threat because his mind was unsettled, then the offence is committed.

In this case, some students organized a Rag Day. They wrote to shopkeepers by offering them immunity from any inconvenience resulting from Rag activities. Some shopkeepers considered the students' letter as containing veiled threat, but that was not considered a menace because there was no evidence which showed that the shopkeepers were under any compulsion to accede to the students' request unwillingly. The court held that if the alleged threat is not capable of instilling fear and/or causing alarm to a person of reasonable mind, no offence is committed.

The court held in the instant case that the offence of demanding property with menaces must be complete with an 'intent to steal' which is an essential ingredient of the offence.

The decision of the court in the case above is that if the victim of a threat is not moved by the threat, but nonetheless, gives his property to the offender in order to make it easy for the police to arrest the offender, an offence under section 406 of the Criminal Code has been committed.

The decision of the court in the instant case is that it is not necessary that property should actually be handed over to the offender. Once there is a threat and a demand of property with intent to steal the property, the offence is complete.

The court held in the above case that even if the accused person has no lawful claim to the property but he honestly believes that he has, no offence is committed. The further decision of the court is that a person has a claim of right if he is honestly asserting what he believes to be a lawful claim even though it may be unfounded in law or in fact.

In this case, A demanded money from B for committing adultery with A's wife. He threatened to sue B for compensation as he could under native law and custom. The trial magistrate did not believe that B committed adultery with A's wife and disregarded the defence of bona fide claim of right. The trial magistrate convicted A of demanding property with threats with intent to steal. On appeal against conviction, the appellate court, quashing the conviction, held that even if adultery was not committed, A had a good defence since he was asserting what he honestly believed to be a lawful claim.

The decision of the court in the cases above is that the demand may be oral or written or may be by gestures. It is not necessary that the language should be explicit. It may be in language only a request. A mere request not accompanied by any condition would not constitute a demand but a request imposing conditions may come within the meaning of demand.

In the instant case, the accused person told D, 'remember, Sir, I am now only making an appeal to your benevolence'. The court held that these words were capable of importing a demand.

The court held in the instant case that the demand may be made for the offender himself or for others.

In the above case, the court held that there cannot be a verdict of attempting to demand money with menaces.

The House of Lords of Criminal Appeal held in this case that a written demand is complete upon posting and it is immaterial that it has not been communicated to the victim.

The court held in the instant case that the offence of robbery may be committed by a fraudulent conversion provided that the element of violence is present. Where A and his companions deposited valuable property in B's houses and went out to buy some meat and were attacked and killed on the way by B who intended to, and did steal the property, the court held that the act of B amounted to robbery.

The accused person in this case, burgled a house and stole therefrom. He was discovered without a chase at a distance away where he resisted the complainant (owner) with violence. The court held that the offence was not robbery but burglary and theft because the element of using violence immediately after the act was lacking.

The court held in the instant case that if the threat of violence is incapable of execution, as where an unloaded gun is used, the offence is committed provided the circumstances are such that a reasonable man would anticipate violence therefrom.

The court decided in the above case that the offence is not committed if the complainant is not present so that there is no violence or threat of it to his person.

In the instant case, it was the decision of the court that where several persons to steal and one of them, unknown to the others, uses violence, those others are not guilty of robbery but of stealing unless it can be shown that they were party to the use of violence.

The defence of honest claim of right is available to a person who is charged with robbery. The court held in the case above that if a creditor severely beats up his debtor and compels him to pay up on spot, it would not amount to robbery.

The position of the law in the instant case is that breaking is an essential ingredient of both burglary and house-breaking. If a man leaves the door of his dwelling house open and a thief enters through the same open door, the offence is not burglary or house-breaking. This is because the element of breaking is lacking.

The law in this case is that if a man intending to commit a felony in a dwelling house gains admittance into it by posting a Sanitary Inspector, his conduct amounts to breaking.

The position of the law in the above case is that if the owner of the house sees through the scheme and is not deceived by it, but nevertheless, lets the schemer in so as to catch him, there is no breaking.

The court held in the case above that there is entry as soon as any part of the accused's body or any part of any instrument used by him is within the building. Thus, if in the process of opening a window the accused person's hand or finger enters the room, there is sufficient entry. See also Davis (1823) Russ & RY 499.

The court held in the instant that there was an effective entry where an accused's feet were on the ground outside a shop and the top half of his body was inside the broken shop window as if he was peeping for goods on display there.

The law in the instant is that a building is a dwelling house provided some persons habitually sleep in it and use it as their homes. The fact that the owner is temporarily away, for instance, on holidays is immaterial. A structure such as a caravan which is kept by the occupier for the residence of himself is a dwelling house.

The court held in this case that a motel unit occupied by a lodger for a week was a dwelling house.

The court held in this case that to insert in a document a false date, or place of making where these are material, constitutes forgery.

In the instant case, the court held that where a person had a general authority to sign cheque, it was not forgery when he fraudulently signed a cheque for money which was not due even though he thereby acted in excess of his authority because the cheque was not a forged document. But it was forgery for him to cash it by means of a forged endorsement of the payee's name.

The court in the above case, held that it was a forgery where D signed a cheque on behalf of his employers after his authority to sign cheque was withdrawn and he was dismissed from service for the cheque purported to be made on behalf of someone who did not authorize it to be made.

The decision of the court in this case was that where a document purports to bear the thumbprint of an illiterate and a false verification of the thumbprint, the two are inseparable and the document is a false document.

It was held by the court in the instant case that an accused person can be convicted for forgery of a document which he swallowed, although, the document is not produced in evidence.

The court held in the case above that to submit a joint application for allocation of market stalls on behalf of and in the name of three women who did not authorize it or know about it is to make a false document. In such circumstance, it did not matter that the signature of the applicant was written after allocation of the stalls had been approved.

Under the English Forgery Act 1913 which used the word 'document', the court decided that a forged letter which was purportedly written by an employee requesting for money from the employer, a telegram which was ante-dated in order to defraud a bookmarker, a certificate of competency to drive, a football pools were all documents.

The court held in this case that a signature constituted a document within the 1913 Act because it purported to convey information about the picture.

The position of the law is that if a person makes a false document in order to recover his property which is in the unlawful possession of another person, he is nevertheless, guilty of forgery. In the above case, a creditor wrote a letter to his debtor which letter purported to have been written by the debtor's employers requiring him to pay the creditor promptly. The court held that such act amounted to forgery.

The court in the instant case, held that an honest believe in the right to make or alter a document will be a good defence to a charge of forgery.

The court held in the above case that where an employee makes a false entry in his own document, of matters relating to his master's business, he is not guilty of fraudulent account since the document was not provided by the master.

In this case, an agent who lived in Scotland, falsified documents which were later inspected by his principal who lived in Rangoon. The court held that the situation is not covered by section 371 of the Indian Penal Code because the agent was keeping the said account for himself.

The decision of the court in the instant case is that if the accused person is charged with making a false entry, it must be proved that the entry was false to his knowledge. If the entry is correct, no offence is committed.

The position of the law in the case above is that in cases of omission, it must appear that the omission was wilful. The expression "privy to omitting" means having knowledge of the omission. But to constitute an offence, there must in addition, be a duty to make the entry.

This position of the law in this case is that there was an intent to defraud where by means of a document which falsely described an applicant for a market stall as a trader, a Municipal Council was induced to allocate a stall to her which it would not have done if it knew that the woman was not a trader.

In the instant case, D, an international telephone operator, was required to fill in for each call a 'charge ticket', which was then used for an accounting purpose. He connected certain favoured subscribers without filling in a charge ticket, so they were not charged. The prosecution failed to produce any falsified document. In upholding D's conviction, the court held that "failure to complete a charge ticket by omitting material particulars from a document required for an accounting purpose constituted the offence of falsification accounts and fraudulent false accounting.

In the instant case, the accused person omitted to make certain entries in his employer's book with intent to delay the discovery of a general deficiency in the cash of his employer the trial judge ruled that this fact did not establish a prima facie case of intent to defraud but he stated a case for the opinion of the Court of Appeal. The court held that the accused should be called upon to make his defence and at the close of the case, it will be for the judge sitting as a jury to decide whether in fact, there was an intent to defraud. The court pointed out that to delay the discovery of a general deficiency must expose the employer to the risk of loss. See also CF. WOODGATE V. R. (1959) E.A. 525 AT 530.

In the case above, D sold goods at a price higher than that fixed by his employer, V. D entered the fixed price in the case book. On charges of making a false entry with intent to defraud and stealing, D argued that the entry was not false since what was entered was what V was entitled to receive and that there was no intent to defraud. The court held that in making an entry for a smaller sum, D had made false entry and that his intent was not only to deceive but also to fraudulently deprive V of the amount which he retained.

The accused person in this case, was charged with stealing and fraudulent false accounting. The judge acquitted him of stealing and convicted him of fraudulent false accounting. On appeal against conviction, the appellate court held that in view of the acquitted on the charge of stealing, a fraudulent intent on the false account charge was not proved.

The court in the instant case, held that a conviction under the provision of section 438 of the Criminal Code could not be sustained where the charge failed to allege an intent to defraud.

However, the Federal Supreme Court in this case, held that where an indictment is merely defective but not bad in law, the omission of words in the indictment is not enough to set aside a conviction, so long as an offence known to law is disclosed in the indictment.

The appellant in this case, endorsed a cheque which was in another person's name to a non-existing person. He opened an account in the fictitious person's name at the bank signed a specimen signature card and paying in slip in the fictitious person's name. The High Court convicted him of forging the signature card and paying in-slip because the court felt that the case came within the principle of cases in which it has been held that the use of pretended name of a fictitious person's amounts to forgery. On appeal to the Supreme Court against conviction, his conviction was set aside. The Apex Court held that as the appellant presented the 2 documents as having been made by himself, the fact that he did so under a false name did not mean that the document purported to be made by some people who did not make it.

In the instant case, the Registrar of a High Court purportedly stated that the judge had made an order against the moveable property of a judgment debtor. The writ which is a document told a lie because no such order was made by the judge. This fact falls within the ambit of section 464(a) of the Criminal Code. Although, it was submitted on behalf of the accused person that the writ is a record kept by lawful authority. The act amount to forgery because the statement in the writ purports to be made by a person who did not make it.

In the instant case, D, a jeweler, at the prompting of E, gave E a written valuation of existence of items of jewelry when in actual fact, there was no jewelry to be examined. The valuation was part of the ploy to decoy and defraud insurers. D's conviction for forgery was upheld by the English Court of Appeal whose objective was to determine whether the valuation certificate was a false instrument by virtue of section 9 of the Forgery and Counterfeiting Act, 1981. The court found that the valuation certificate was a document by virtue of section 9(1) (g) of that Act, in that it was made 'otherwise in circumstances' in which it is not in fact made. The court went ahead to elaborate on facts which influenced its decision, thus:

The words coming at the end of paragraph (g) 'otherwise in circumstances...' expand its ambit beyond dates and places to any case in which an instrument purports to be made when it was not in fact made. This valuation purported to be made after D had examined the items of jewellery... He did not make it after examining these items because they did not exist. That which purported to be a valuation after examination of items was nothing of the kind: It was a worthless piece of paper.

In the instant case, a company book-marker, D, issued out cheques to the company's creditor and after the cheques were signed by the directors, he altered the names in the cheques in favour of a fictitious name which he handed over to his confederate, E. In order to cash the cheques, they gave them to F who opened an account and assumed the fictitious name or an alias. F then represented herself as that person but gave her correct address. F succeeded in cashing the cheque. F's conviction for forgery under the 1913 Act was upheld by the English Court of Appeal.

The accused person in the above case, picked a cheque in the name of M. R. Jessel. He opened an account with that cheque at a building society in the name of Mark Richard Jessel. He was convicted for forgery under section 9(1) (h) of the Forgery and Counterfeiting Act 1981 (England). The English Court of Appeal quashed his conviction. Lord Ackner pointed out that:

D was a real person...The withdrawal form clearly purported to be signed by the person who originally opened the account and in this respect, it wa s wholly accurate. Thus, in my judgment, it cannot be validly contended that the document told a lie about itself.

In this case, D was convicted of forgery because he altered the date on a settlement in order to ante-date the provisions of an Act of Parliament so as to avoid the payment of tax on the settlement.

The decision of the court in the instant case is that if a person gives a note entirely on his own, his subscribing it by a fictitious name will not make it a forgery, the credit there being given to himself, without any regard to the name, or any relation to a third party.

The court held in the above case that the conviction of the accused person was to be quashed where the trial judge appeared to have directed the jury that it was enough that the accused intended a false instrument to be accepted as genuine and did not or did not adequately explain; that it must be proved also that the accused person intended thereby to procure another to act to his prejudice.

In the instant case, three persons, A, B and C committed an offence. A sent a telegram to B in the name of Z warning B falsely that C had been arrested. The court held that A was not guilty of forgery because his intention was not to cause injury to Z or anyone else but to conceal the fact that he was the sender of the telegram.

In the case above, the accused person wrote a rent note purported to have been by another person in a suit he filed against that person, intending that the note may be used to support his title to the land which was in dispute. The accused withdrew the note when it was disputed during the t trial. The accused was however, held to be guilty of forgery by making a false document intended to support his tittle to the land.

The position of the law in the above cases is that to obtain by false pretences, one must induce the owner to transfer his whole interest in the property. The usual distinction is between possession and ownership. If by false pretence possession is transferred only, then the offence is stealing. If however, both possession and ownership are transferred, then it is obtaining by false pretences.

In the instant case, the accused person pretended to be a clerk of stores. He helped a customer to purchase some goods from the store. The customer gave him the price he mentioned which was in fact, more than the true price of the goods and the accused pocked the difference. He was convicted of stealing. On appeal, the High Court thought it was not stealing but false pretences because the customer gave to the accused both possession and property in the money. On further appeal, the appellate court held that what the accused obtained was merely possession of the money and not ownership which was intended for the shop owner and that by keeping part of it, he was guilty of stealing.

In this case, the accused person was a county council revenue collector. He was issued with a revenue collector's receipt book for the collection of the fees for bicycle licences. He forged a similar receipt with which he collected fees and misappropriated the moneys received. The court held that the offence was false pretences and not stealing because the payers parted with both possession and ownership in the moneys paid to the collector.

The law is that if A by a false pretence obtains the hire of B's bicycle for a day and returns it but does not pay the hire charge, it is not obtaining of the bicycle by false pretences because what A obtained was only a ride on the bicycle and not B's entire interest in it. In the above case, K obtained hire of a horse by a false pretence, returned the horse without paying cost of hire. The court held that the act did not amount to obtaining by false pretences.

The court in the above case held that a person may be convicted of obtaining a railway ticket by false pretences even though at the end of the journey the ticket will be returned to the owner.

In the cases above, the offence of obtaining by false pretences is committed when a person obtains a loan of money by false pretences even though he intends to repay it. This is because ownership in the particular money lent has passed to him.

The position of the law in the instant case is that the property in the goods must be obtained from the general owner or from someone who has power to pass the property.

The law in the case above is that if a customer pays a forged cheque into a bank account and the bank makes an entry crediting that customer with the amount on the cheque, he is not guilty of obtaining money from the bank by false pretences. The offence would be committed where the money has actually been handed over to the customer. Property in the money in the custody of the bank, no matter how much the customer may be in credit, is in the bank.

The distinction has been that 'obtaining' means obtaining for oneself and 'inducing delivery' been a situation where A induces B to deliver to A or to C. The court has held in the instant case that a charge alleging an "obtaining" will fail if in fact, the false pretence was made with the object of inducing delivery to another person.

In the case, the accused person was charged with obtaining money from X by falsely pretending that he was in a position to appoint him a Customary Court member. Evidence adduced was to the effect that accused obtained the money to give to another person to enable X to be appointed. The court held that there was a variance in substance b between the pretence charged and the evidence adduced which variance was fatal to the prosecution's case.

The court held in this case that a charge alleging an "obtaining" will fail if in fact the false pretence was made with the object inducing delivery to another person.

The decision of the court in the instant case was that where a defendant ordered food in a restaurant without making any verbal representation and was found to have no money to pay for the food he ordered, he was not guilty of obtaining the food by false pretences. This is because his conduct did not imply that he was a man of means.

The court held in this case that sometimes a pretence can be inferred from the conduct of the accused and the circumstances of the case.

The court held in the above case that if there is a substantial difference between the pretence alleged in the charge and the pretence proved at the trial, D cannot be connected.

In obtaining by false pretences, the presentation must refer to a matter of fact either past or present. If it relates only to a future matter, no offence under section 419 has been committed. In the instant case, the accused person was charged with false pretences the allegation being that he, with intent to defraud, obtained a sum of money from another person by falsely pretending that he would give it to a Superintend of Police to give a job to that person. The court held that the accused was not guilty of obtaining money by false pretences because the representation related only to a future matter.

The position of the law in the instant case is that where a person obtains money from another by falsely pretending that he would give it to a third person for some favour to that other person, the appropriate charge would be stealing. This is because the money was meant for the third parry and the accused had mere possession of it. By converting the money to his own use would amount to stealing. See also Amu v. I.G.P. (1958) 3 F.S.C. 34 at P. 36.

The law is that when a cheque is drawn, there is an implied representation that it is a valid order for the payment of the amount stated on it. In the instant case, the drawing of a cheque was previously held to imply three representation, namely:

i. That the drawer has an account at the bank;

ii. That he has authority to draw on it for that amount;

iii. That the cheque is a valid order for the payment of that amount.

The court held in the above cases that the giving of a post-dated cheque implies a future representation.

The court in the instant case held that in respect of obtaining by false pretences, if the drawer has no account at the bank, then there is a false representation of an existing fact.

The law is that if the false representation consist of partly of a statement of a past or present matter and partly of a statement relating to the future, an offence is committed under section 419 of the Criminal Code provided the former statement is a material contributory factor inducing the representee to part with his property. In the above case, the accused person, a married man, represented himself as being single and induced a girl to give him money promising that he would use the money to furnish a house and thereafter marry her. He was convicted of obtaining the money by false pretences. See also Chief Superintend of Police v. Ceesay (1956) 2 W.A.F. L.R. 87.

The accused person in the case above, carried on business as a pest destroyer. He took money from some farmers pretending that he would kill vermin on their farms, but he did not. He was not convicted of obtaining money by false pretences because the representation related to the future. But the court said:

In the type of case which this court is now considering, it is very often possible to allege and prove that the prisoner either expressly or by implication falsely pretended that he was carrying on a bona fide business. If this fact can be proved in addition to the false promise, the conviction can be sustained.

In this case, the accused person, a hotel waiter, was found in the hotel with six bottles of wine on him of a kind not stocked by the hotel. He was charged and convicted under section 25 of the Theft Act 1968 with going equipped to cheat having admitted that he intended to sell the wine to the hotel customers for his own profit.

The court decided in the above case that if a tradesman knowingly makes a false statement of fact concerning his product, it would be a false pretence. In the same vein, where a palm wine seller induces a customer to buy his palm wine by falsely representing it as undiluted palm wine, he would be guilty of obtaining money by false pretences if the liquor turns out to be half water and half wine, and the prosecution has the burden of proving the falsity of the pretence, and it ought not to be presumed.

Where the accused person was charged with obtaining various sums of money from the complainants by falsely pretending that he would give the various sums to certain officials who would grant loans to the complainants, the court held that as there was no evidence that no unlawful payments were required by those officials, the accused could not be convicted of obtaining money by false pretences.

The court held in the instant case that if the pretence is shown to be false, it is no defence that the person defrauded parted with his property in order that it might be put to an unlawful purpose.

In this case the, street trades selling scent for 25p said, 'you can go down the road and buy it for 2 guineas in the big stores.' The police checked certain stores but it was admitted in cross-examination that they had not been to sale fridges. The court held that the judge rightly pointed out that it was impossible for the police to go every shop in London and that if the defence knew anywhere it could be bought at that price they were perfectly entitled to call evidence. Since no such evidence was called, the convictions were upheld.

In the above case, the accused (now appellant) who was the Chairman of the defunct Ivory Merchant Bank Ltd. Claimed to have one million US dollars for sale and, that what was available was 345,000.00 US dollars. He claimed that the transaction was that of the bank and that the bank wanted to transact it secretly to avoid publicity as the bank was trying to shore up its revenue base. He approached one Mrs. Nkechi Justina Nwoagu, an ex-banker who was the Managing Director of a company called Liberal Investment Ltd, who testified as PW1 to find a buyer of the dollars and, that she would be entitled to brokerage fees.

During his trial for an offence of false pretences under section 419 of the Criminal Code, amongst other seven count charges, he denied that he was representing the Ivory Merchant Bank Ltd in the matter of the sale of the foreign exchange. PW1 later approached Partnership Investment Limited who accepted to pay for the dollars. A bank draft was issued by Crystal Bank of Africa Ltd in the sum of N16.56 million in the name of Ivory Merchant Bank. Though the draft was crossed, the appellant paid it into his person account with the Merchant Bank. As no foreign exchange was received by the Partnership Investment Limited, the appellant was charged before the Failed Bank Tribunal Zone W Lagos on various counts, including stealing and obtaining by false pretences. He was convicted for false preences and of three other counts. His appeal to the Supreme Court was dismissed. On what the prosecution must proof to succeed in an offence of false pretences, the Apex Court, per Tobi, J.S.C. on page 71, lines 5 -- 40 held:

That for the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment of the offence.

The learned judge referred to the case of Alake v. The State where it was stated on p. 591 thus:

Let me deal with the offence as provided for in section 419 of the Criminal Code Law. In order to succeed, the prosecution must prove:

1. That there is a false pretence;

2. That the pretence emanated from the accused person;

3. And that it was false;

4. That the accused person knew of its falsity or did not believe in its truth;

5. That there was an intention to defraud;

6. That the thing is capable of being stolen;

7. That the accused induced the owner to transfer his whole interest in the property.

The court decided in the case above that an intent to defraud is an intent to induce another by deceit to act to his detriment or contrary to what would otherwise be his duty and it is immaterial that there is no intention to cause pecuniary or economic loss.

The court held in this case that the offence of obtaining by false pretences is committed where a loan of money is obtained by a false pretence even if the money is repaid subsequently. If A obtains money from B by a false pretence, the intent to defraud is not negatived by showing that the money obtained is nothing more than a suitable reward for the services rendered by A to B.

The accused person in the above case, a legal practitioner, had represented the complainant in a case which was settled, and as a result of which a sum of money was paid into court. The court then made an order for the payment of the money to the complainant. By falsefly representing that he had the complainant's authority to withdraw the money, the accused induced the cashier to pay the money to him. On a charge of false pretences, the accused argued, inter alia, that there was no intent to defraud either the complainant or the treasury; that he took the money solely with the object of giving himself a stronger bargaining position for his fees (the fees were subsequently agreed upon and he paid over the balance to the complainant).

The court held that the complainant was defrauded in being put at a disadvantage in the discussions over the accused's fees and being made to wait for his money until the matter was settled to the satisfaction of the accused. The court further held that although, the accused may not have intended that the Treasury should suffer any loss, yet, it would appear that it was also defrauded by being induced to part with the money to a person not entitled to it.

The accused person in the above case, a legal practitioner, had represented the complainant in a case which was settled, and as a result of which a sum of money was paid into court. The court then made an order for the payment of the money to the complainant. By falsefly representing that he had the complainant's authority to withdraw the money, the accused induced the cashier to pay the money to him. On a charge of false pretences, the accused argued, inter alia, that there was no intent to defraud either the complainant or the treasury; that he took the money solely with the object of giving himself a stronger bargaining position for his fees (the fees were subsequently agreed upon and he paid over the balance to the complainant).

The court held that the complainant was defrauded in being put at a disadvantage in the discussions over the accused's fees and being made to wait for his money until the matter was settled to the satisfaction of the accused. The court further held that although, the accused may not have intended that the Treasury should suffer any loss, yet, it would appear that it was also defrauded by being induced to part with the money to a person not entitled to it.

The accused person in this case, asked for money by false pretences. He was paid by cheque. The court held that the charge was properly laid under section 419 of the Criminal Code, not under section 420 of the Code because the accused asked for money and there was no inducement to the complainant to make out a cheque.

The court in the case above held the wearing of a badge to be a false pretence when it indicated that the wearer was entitled to take bets on a race-course.

A consultant in the instant case was held by the court to have deceived a hospital, contrary to section 2(1) of the English Theft Act, 1968, by his failure to inform the hospital that certain patients were private patients, knowing that it will result to them being exempted from liability to make a payment.

In the instant case, the accused person obtained loan of money on the security of some trinkets which he represented as gold but which turned out to be gilded brass. The court held not to be cheating because there was no evidence that the gilding was done by the accused or by his orders or for the purpose of the fraud.

The court held it to be cheating in this case when the accused person by presenting false invoices to the customer obtained release of their own goods on payment of a lower amount of duty than was properly chargeable.

The accused person in the above case, was convicted of cheating a prospective purchaser of a car by dishonestly inducing him to deliver moneys. The charge failed to specify the deceit whereby the purchaser was alleged to have been induced to deliver the money. There was also no clear indication of it in the judgment. The appellate court, allowing the appeal, held that a charge of cheating must specify the deceit alleged, and there must be evidence of that deceit.

The appellant in the instant case was a supervisor with the Native Authority. He took the labourers and masons of the Native Authority to work for him in his private building with the Native Authority tools intending to cheat. He was convicted for an attempt to cheat the Native Authority. In allowing the appeal, the court held that the appellant's act in getting the workmen to work on his private building was not sufficiently proximate to any act of deceiving the Native Authority to believing that the workmen had been employed on Native Authority work, so that the Native Authority could pay them.

The court held in the case above that evidence of successful deception is necessary to prove a case of cheating.

D in the instant case, dishonestly evaded value added tax. He was charged under the English Finance Act 1972, section 38(1) with fraudulent evasion of tax. He was convicted of cheating. The argument of the defence counsel that the offence of cheating required a positive act and not merely an omission to make a vat return was rejected. The Court of Criminal Appeal in upholding D's conviction, held that D was under duty to make such a return and his failure to do so with intent to cheat the revenue of money to which it was entitled constituted the offence.

In the case above, the accused person had authority to purchase certain quantity of opium. He falsely gave the name and address of another consumer entitled to a larger quantity opium than himself and thereby induced the Excise Officer to let him have more opium than he would have had. The court held that the accused secured an advantage for himself by fraudulently inducing the Excise Officer to let him have more opium and therefore guilty of cheating.

The accused person in this case, a university teacher, put on a false beard and represented an examination candidate. The day being hot, the invigilator put the fans on at a high speed which blew off the false beard and the fraud was then discovered. The accused was found guilty because the act of the invigilator allowing him to sit for the examination instead of the actual candidate is likely to cause harm to the reputation of both the invigilator and the University.

The accused person in the instant case, without making a representation as to his ability to pay, ordered food in a restaurant. He was unable to pay and was convicted of obtaining credit by fraud.

The offence of obtaining property or credit by means of dishonoured cheque is governed by the Dishonoured Cheques (Offences) Act. The Supreme Court in the case above held that for the purposes of section 1 (1) of the Dishonoured Cheques (Offences) Act which provided thus:

Any person who (a) obtains or induces the delivery of anything capable of being stolen either to himself or to any other person; or (b) obtains credit for himself or any other person by payment not later than three months after the date on the cheque, is dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall:

i. In the case of an individual be sentenced to imprisonment for two years without the option of a fine, and

ii. In the case of a body corporate be sentenced to a fine of not less than N5,000.00

(a) The reference to anything capable of being stolen shall be deemed to include a reference to money and every other description of property, things in action and other intangible property;

(b) A person who draws a cheque which is dishonoured on the ground stated in sub-section and which was issued in settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque shall be deemed to have obtained credit for himself f by means of the cheque notwithstanding that at the time when the contract was entered into, the manner in which the obligation would be settled was not specified.

On the category of people exempted from coming into the provision of section 1(1) of the Dishonoured Cheques (Offences) Act, the Supreme Court held as per Mukhtar, JSC (pp. 23 -- 24) (lines 4 -- 10) that:

A person shall not be guilty of an offence under this section if he proves to the satisfaction of the court that when he issued the cheque, he had reasonable grounds for believing, and did believe in fact, that it would be honoured if presented for payment within the period, specified in sub-section (1) of this section.

On what the prosecution should prove in a case of dishonoured cheque, the Supreme Court referred to section 1(1) (b) of the Dishonoured Cheques (Offences) Act, which states thus:

Any person who obtained credit for himself or any other person by means of a cheque that when presented for payment not later than three months after the date of the cheque is dishonoured on the grounds that no funds or insufficient funds were standing on the credit of the drawer in the bank on which the cheque was drawn shall be guilty of an offence...

Based on the above, Onnoghen, JSC at (PP. 27 -- 28 lines, 20 -- 25) stated that the duty on the prosecution is to prove:

(a) That the appellant obtained a credit by himself

(b) That the cheque was presented within three months of the date thereon, and

(c) That on presentation, the cheque was dishonoured on the ground that there was no funds or insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn.

In obtaining by deceit, it is always essential to prove that the representation influenced a party and caused him to do the act. The prosecution must prove that the representation operated on the person's mind. In the instant case, D changed the registration number plates and chasis number plate of a car and sold it to P. The court held that constituted a representation by conduct that the car was the original car to which these numbers had been assigned. However, D's conviction for obtaining the price of the car by deception was on the ground that it was not proved that the deception operated on P's mind.

In the instant case, D produced a post office clerk a false declaration that he was entitled to supplementary benefit and was granted E10.60, but no post office employee gave evidence. In upholding the conviction of D of obtaining the benefit through deception, the court distinguished Laverty case and held that D was rightly convicted because there was no conceivable reason for the payment other than the false statement.

In the above case, D consumed a meal in a restaurant. He dishonestly decided to leave without paying. He waited until the waiter went out of the room and he ran off. The House of Lords held that the waiter was induced to leave the room by D's implied and continuing representation that he was innocent customer intending to pay his bill.

In the above case, D consumed a meal in a restaurant. He dishonestly decided to leave without paying. He waited until the waiter went out of the room and he ran off. The House of Lords held that the waiter was induced to leave the room by D's implied and continuing representation that he was innocent customer intending to pay his bill.

In this case, obtaining a loan by deception was held to be dishonesty notwithstanding D's intention to repay.

The position of the law in the instant case is that in order to prove receiving, it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession or has aided in concealing it or disposing of it. Merely assisting in disposing of the thing without having control of it, is receiving.

The court held in the above case thus:

It is clear that actual manual possession of goods by a defendant is not necessary to the completion of the offence of receiving; it is sufficient if they are in the actual possession of a person over whom the defendant has a control, so that they would be forthcoming if ordered.

The court found the accused person guilty of possessing stolen property though, the actual possession of the property was with the wife.

The court in the instant case held that where two persons are acting in concert and one has knowledge that the other is in possession of stolen goods, the other too is deemed to be in possession.

The court held in the instant case that a person who by virtue of section 7 of the Criminal Code is a party to the theft of goods may also be convicted as a receiver of the same goods.

The position of the law in the above case is that if a wife of a Christian marriage while living with her husband steals property belonging to her husband and gives it to A who knows how it was obtained, A is not guilty of receiving because the property was not stolen.