Law of Attempt (Criminal Law)

Law of Attempt

The interest of crime prevention would not be well served if a man intending to commit a crime were to be held innocent until he had actually committed the crime intended. Mere intentions is not criminal, however, where that intentions is put into effect, one maybe guilty even before he achieves his aim. Thus, it is an offence to commit an offence.


The prosecution must prove that the accused intended to commit the offence which he is alleged to have attempted. Thus in R. V. Seidu, the accused could not be guilty of attempting to commit rape because he did not intend sexual penetration. This is evident also in R. V. Offiong.

Since section 4 requires prove of intent to commit an offence, it is arguable that the rule of ignorance is not an excuse is excluded by necessary implications. It should be noted that a man cannot be convicted of attempting an offense of strict liability unless he consciously intended it.


What sort if act constitutes an actus reus? The question must be approached with caution. Section 4c.c in effect requires 3 elements for the actus reus of attempt.

  1. That the accused has begun to put his intentions into execution
  2. That he has not fulfilled his intentions to such an extent as to commit the crime.
  3. That his intentions be made manifest by some overt act.

English law draws a distinction between preparation to commit an offence & an attempt. The former not usually being sufficient to ground liability, though in certain cases it might be expressly declared to be enough.

In R. V. Button, the accused entered for an athletic meeting and filled in the entry form falsely. It was held that he was guilty of attempt to obtain by false pretense.

In R. V. Robison, on the other hand, a jeweler, tied himself up and pretended that his shop had been burgled. His aim was to collect the insurance money but was arrested before-hand. It was held that There was no attempt.

However, none of this takes us close towards a general theory of attempt. As parke B in R. V. Eagelton stated “some acts is required & we do not think that all acts towards committing a misdemeanor is indictable”

This statement was approved in R v. Robison & applied by the northern high court of appeal in Orija V. IGP. The currently most favored test if attempt is that of Mr. Turner in Orija’s case. Smith J. Describes it as being more practical than that in Eagleton

This is described as the Equivocality test. Turner later modified the test as it was too narrow.


Section 4 only talks about intention being manifested by overt act. But presumably, it would be possible to convict for an attempted criminal omission, at least where the crime was one of intentions.


It is immaterial in a conviction for an attempt which by reasons unknown to the offenders is impossible to be committed. Thus, a man is only guilty of an attempt if he puts his hands into an empty pocket to steal. If the impossibility is a legal impossibility, then there is no attempt. E,g an infant of seven years cannot legally steal.

Whatever doubts may exist on this matter have been resolved by the house of lords in Haugton V. Smith overruling the decision in R. V. Ring.


If anyone procures another to commit a crime, and that person agrees, then there is a criminal conspiracy. If the act is committed, the procurer is guilty as the principal offender even though the committer of the act be not criminally responsible as provided in Section 513c.c

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

Parties to an Offence (Criminal Law)

Parties to an Offence

A number of people may be involved in the commission of a crime, but the degree of their involvement may differ a great deal & the law has to decide what degree may suffice for criminal responsibility. In the criminal code, there are two distinct classes of offenders –

  1. Principal offenders
  2. Accessories after the fact.

The relevant sections of the code are chapter 2 & section 519-521. However, this may include the case of a man who is neither a principal nor accessory but who neglects to prevent a felony which he knows is being committed or is intended to be committed as provided in section 515c.c.


Section 7c.c creates 4 distinct classes of principal offenders. Each of these have little practical distinctions. For there is a rule that anyone who is found to be a principal of whatever type, is deemed to have taken part in committing the offence & could be guilty of the offence and may be charged with actually committing it.

In R. V. Akpuonu, a father buried his newly born twin in the presence of the mother. It was held that there was no evidence of that the mother took part or aided it. In other words, nothing could bring her within the provisions of S.7.


  1. Every person who actually does the act or makes the omission which constitutes the offence. (S.7A)
    Little discussion of this category is necessary. The man who sticks the knife is the one who does the murder. Where a man who does an unlawful act is acting in all innocence as the agent of another’s criminal intentions, then he himself is free of criminal responsibility.
    In R. V. Idiong & umo, idiong intending to procure an abortion induced umo a native doctor to administer drugs to a woman who died as a result. The WACA took the view that imo’s intention was to relieve the woman of pain. It was held applying common law principle that he was not criminally responsible & that idiong was solely responsible.
  2. Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence (S. 7B) & every person who aids another person in committing an offence. (s. 7C.)
    These two provisions may be conveniently discussed together. The difference between them is merely that under S. 7B, the assistance bis done before the act. Whereas in S.7C the assistance is simultaneous with the offence.

    If the aid is not given either prior or at the time of the commission of the offence, but is given after, then the accused is only an accessory after the fact. 3 factors are considered here a. The act if assistance b. Mere presence. c. Commission of a substantive offence.
  3. Any person who counsels or procures another to commit the offence (S.7D)

The last category of principal, those who counsels or procure the commission of a n offence is similar to those who do an act for the purpose of enabling or aiding, although under s.7d, words alone suffice for liability. But the words of counseling must be a sort of positive encouragement as evident in R. V. Idika.

In Ajao v. Alkali amode, an alkali who ordered a policeman to slap an accused for contempt of court was held guilty of assault by virtue if S. 7D.


It has been held by the Queensland court of criminal appeal in R. V. Solomon, that S.7 should be read in conjunction with S. 24 & that S. 7 is not intended to create responsibility for unwilled act.

It is submitted that these two authorities provide a correct view of the section since a man cannot be liable for acts which occurs independently of his will as this comes under S. 8 & 9.


A person who receives or assists another who is to his knowledge guilty of an offence in order to enable him escape punishment is said to become an accessory after the fact.

Whereas the principal the principal offender is liable to full punishment, the general punishment for an accessory after the fact, is considerably less than 2years maximum imprisonment of it’s a felony & 1 & half years for a misdemeanor.

Actus reus

The actus reus for the offence is receipt or assistance after the commission of a crime. In English law, if a man assists an accessory after the fact, then he himself may become an accessory after the fact. This is provided for in section 10.

Mens rea

The mens rea require is the knowledge of the guilt of the person assisted plus the intention to facilitate escape from punishment which must be proved on all evidence.

Limits to the liability of an accessory after the fact

The law on this subject is wide especially of Sections 10 covers cases of assistance by omission. Section 10 applies to all offences whether felonies or misdemeanor. The only limit provided for in section 10 is that a wife is not an accessory after the fact if she assists her husband to escape punishment. This rule is clearly based on the various emotions which may arise between husband & wife.

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

Corruption in Nigeria (Criminal Law)

Corruption in Nigeria

Would love to read about Corruption in Nigeria – concept, trail, consequences, legal responses etc.? Continue reading.

Around the globe, the negative perception of corruption in public places continue to grow. It’s struggle to retain its place as one of the major causes of poverty is felt. The menace it has created crawls to all levels if the society ranging from the local & national govt, the civil service, down to the judiciary.

The law on the subject of corruption remains far from clear, however, our criminal justice system at least in theory lays great emphasis on the need for integrity in public life. In this bid, the concept of corruption shall be dissected, whilst contribution to the contention of corruption around the universe would be proffered.


Various scholars, jurist & writers have on different occasions laid down diverse opinions as to its meaning. According to the OXFORD learned dictionary, Corruption is regarded as “the act of impairing integrity, virtue or moral principle; it is the loss of purity, organization & composition”

It is described as a cankerworm which destroys the integral value of the society. Prof Adeyemi of UNILAG is noted to have said –

“Corruption is so prevalent in Nigeria that it requires no definition”

Corruption relates to the embezzlement of funds, nepotism, bribery & refusal to apply necessary sanctions. To the vast majority, it is considered as a “Monster that is felt rather than seen“.


Basically, the form of corruption we focus on related to the Govt, political officers & formal sector. However, it extends to the private and informal sector because there exists a link between the private, formal & informal sectors.

Some are of the opinion that corruption was existent during the colonial & post-colonial era. However, in the pre-colonial era, where the class system had not come into place, corruption according to prof. Ijalaye had not existed. It is believed that the discovery of oil in Oloibiri in 1956 by expatriate commenced corruption in Nigeria.

The issue of corruption is very much inter-related with other issues. At the global level, the international (Washington consensus influenced) economic system that has shaped the current form of globalization in the past decades requires further scrutiny as it has created conditions whereby corruption can flourish.

At the national level, people’s effective participation and representation in the society had been undermined by corruption whilst at the local level corruption has made the day to day life more painful for all those affected.

Corruption is prevalent in both developed & developing countries. It is not age restricted as both the young & old have tendencies to be corrupt. A difficult thing to measure is the impact if it in poverty versus the effect of inequalities that are structured into law. Corruption is not limited to the third world countries.

As Prof. Robert Neild, from Trinity college Cambridge University writes on his article, “Public corporation: the dark side of social evolution (London anthem press 2002)

“Rich countries & their agencies have been & are accomplice in corruption abroad, encouraging it by their actions rather than impeding it.”


The consequences of corruptions are universal even if there could be variation in the level of state and non-state approach to these consequences the history of corruption in fact relates to the creation of the law & the state and was already in antiquity considered an Evil. The following are therefore the effect of corruption:

  1. Corruption promotes poverty: massive corruption in Nigeria has reduced the amount of money needed for development. An instance can be seen in the management of pension & funds in Nigeria. Nigeria according to Quartz Africa, has the largest extreme poverty population about 86.9 million Nigerians living in poverty represents about 50% of its estimated 180million citizens
  2. Creates condition for political instability: this is because unrestricted corruption makes the state an unlimited allocator of wealth to individuals & groups. This characteristic makes it possible for the politics to be a do or die affair.
  3. Criminalization of Nigerian youths: with its capacity to generate poverty & instability, the youths have been systematically hijacked fir selfish ends by unscrupulous politicians. This has also increased interest in Advance fee fraud.
  4. Existence if an illegal economy: the possibility of bribe infiltrating the security system has made it easy for underground economies in counterfeit, adulterated & substandard products. On Mar 2, 2018, a father & son were arrested for selling tramadol to primary & secondary school in Itire area of Lagos.

The European commission in its report found that corruption is costing the European economy about 120million a year and According to The European commissioner for Home affair, Cecelia Malstotrom, the corruption in Europe is most present in public procurement, financing & healthcare.


There are several laws which have been put into place to fight corruption. Most if these laws include:

Criminal code, penal code, EFCC act, ICPC act, money laundering act, code of conduct act, dishonor cheque act, cyber-crime act.


The world bank group considers corruption as a major challenge to its twin goal of ending extreme poverty by 2030 & boosting shared prosperity for the poorest 40% of people in developing countries. However, some of the following remain as challenges to eradicating corruption

  1. Immunity
  2. No acceptable definition of corruption
  3. Lack of will
  4. Contradictory state policies.


Several measures can be put into place to successfully combat corruption in Nigeria. They include:

  1. Expunging of immunity
  2. Restricting the scope of capitalism
  3. Reinstating china’s system of punishment
  4. Jettison of plea bargain
  5. Strict enforcement of law
  6. Electoral reforms

In conclusion, over the decades, a vast infrastructure of graft and impunity had taken root, taking its place in the political class, business and financial community. Sadly, this extends to the judiciary and media sectors. However, to win this war of corruption, thorough studies and strategies in countering corruption must be upheld.

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

Principle of Legality (Criminal Law)

Principle of Legality

The principle of legality represents the standard of living that is expected of a criminal statute. It is captured in the Latin phrase “Nullum crimen sine lege, nulla poena sine” which roughly translates as “No crime or punishment without the law”. It represents the yardstick by which the legitimacy of criminal law can be measured.

In essence, the principle of legality implies that criminal liability band punishment should be based only on a prior enactment of a prohibition that is expressed with adequate precision & clarity. The principle stands on 3 legs which are:

  1. Substantive provision of law
  2. Procedures for the enforcement
  3. International recognition.

The principle of legality has international flavors. In other words, it is a universal concept or due process in criminal law, meaning that whether we are civilized or not, it can be gathered from how much we comply with the principle of legality.

The doctrines that make up the legality principle include the abolition of existing common law penal doctrines, the prohibition of judicial creation of penal rules, special rules mandating that penal statutes be construed strictly, the prohibition of post facto laws, the due process bar on the retroactive application of judicial interpretations altering criminal rules & the due process invalidation of vague criminal statutes. It is designed to guarantee the primacy of law in criminal procedures so that neither state prosecution nor defendant are exposed to arbitrary bias.

International instruments

Basic principles of legality can be found in the universal declaration of human rights (UDHR), the European convention in human right (ECHR), the international covenant on civil and political rights and the Geneva constitution. In line with this, article 11 paragraph 1&2 of the UDHR (1948) focuses on the principle of legality.

The ICCPR Article15(1) provides “No one shall be guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed.

UDHR article 11(2) states “No one shall be held guilty of any penal offence on account of any act or omission which did not constitutes penal offence”.

ECHR article 7 also states that there should be “No punishment without the law” similar grounds were provided in protocol 1 of the Geneva conventions, 75(4)(c) 1977

Municipal provision

The concept of the principle of legality was also made reference to in section 36(5) CFRN 1999 which provides that a person should be presumed innocent until proved guilty. In other words, there should be no retroactive criminalization of events which were not crimes when they took place. It should be added that punishments cannot be backdated. The provisions of S.36(12) CFRN 1999 makes for this

S. 11 of the code makes for the effect of charges in law where it provides that ” A person shall not be punished forgoing or omitting to do an act unless the act or omission Constituted an offence under the law in-force when it occurred”.

Principle of legality represent ideal goals that all state institution and apparatus involved in the criminal justice system must conform with. It binds all agents of a state: the legislature, & executive especially. The agents used by the executive in the criminal justice system include then police, & prison warden and in the judiciary, it includes the judges. The principle of legality translates

  1. That punishment must be within the purview of the law (Written & clear). For instance, the patriot act which relates to cyber activities of the USA has been invalidated for vagueness. The communication decency act 1976 made to target indecent exposure of children to adult related works online has been invalidated. See also Aoko V. Fagbemi
  2. It’s laws must be published & not secretive. In this view, section 22 of the criminal code. State “ignorance of the law does not afford an excuse… Unless knowledge by known by the offender is expressly declared to be an element of the law.”
  3. It must not be retroactive. This is made for in the case of Udokwu v onugha & anor
  4. There must not be trail or punishment by analogy. If what the offender dies is not a crime in the community where it was carried out, then it cannot be a crime.

Relating this principle to our socio-political reality.

The socio-political realm is one of the vital aspects of life in the society and Nigeria as a nation. Thus, the sphere of legality may be said to be in juxtaposition with this realm. This affects areas such as –

  1. Arrest & incarceration in Nigeria
  2. Activities of SARS
  3. Pre-trail parade of suspects
  4. Public condemnation
  5. Military rule.

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

Death Penalty (Capital Punishment – Criminal Law)

Death Penalty/ Capital Punishment

Should the death penalty be withdrawn or upheld in Nigeria? What do you think? This post considers the death penalty.

For decades, the quest to achieve the maintenance of peace & order have been at the topmost of govt policies. However, this has been crushed by the incessant rate of crimes hitting the country. On 26th July 2018, George kirkham stated in “New-York times” that crimes in the society may never diminish, it grows in geometric progression.

The trial of criminal activities has in turn birthed the preferment of punishments. Whose aim is to curb the heavy rate of crime involvement. The juxtaposition of crimes and punishment has however been founded on the degree of the crime committed by the individual. Little wonder, Lord Atkin in the case of Proprietary trade association V. Attorney general of Canada poignantly quipped

“The criminal quality of an act cannot be determined by reference to any standard but one is the act prohibited by penal consequences”

Thus, crimes which go overboard have been meted the death penalty. Otherwise known as the capital punishment.

The capital punishment is the state authorized killing or execution of an offender consequent on conviction & sentence of death imposed by a competent court. Additionally, such sentence cannot be carried out until the convict had exhausted his right of appeal of a sentence of death.

There are quite a large number of scholarly b& judicial on the lawfulness of capital punishment. Some make argument on Moral & philosophical basis while some make their argument on international law basis this controversy has continued; to linger as an issue within Nigeria and internationally likewise.

Is it in any way justifiable within legal frame work to lawfully execute convicts? This question has been diffused into two stand-point

  1. Retentionist argument
  2. Abolitionist argument

Abolitionist on Death Penalty

This a view held by those in the abolitionist realm, they believe the death penalty is the worst violation of human right because “right to life” is the most important and it goes further to inflict the condemned with a phycological torture.

The abolitionists refer to it as “Cruel, inhumane & a degrading punishment” presently, 103 countries of the world have completely abolished the death penalty “dejure” for all crimes, six have abolished it for ordinary crimes while maintaining it for special circumstances such as war crimes & 30 are abolitionist in nature.

In the European union, Article 2 of the charter of fundamental rights prohibits the use of capital punishment. The council of Europe which has 47member states has sought to abolish the use if the death penalty by its members absolutely through protocol 13 of the European convention on human rights. In same vein, the united nations general assembly adopted in 2007,2008, 2012 & 2013, non-binding resolutions calling for a global memoratium on execution.

Those in the abolitionist realm have gone further to state their reasons for this archaic mode if punishment.

  1. The death penalty is cruel outdated & pre-modal
  2. Some argue that it is morally wrong and against right to life
  3. When a govt kill, it sends a signal to the people that they can also kill
  4. Some believe it places a low value on life and creates a vicious circle of murder.
  5. One of the strongest reasons of the abolitionist is the imperfect judicial system for instance in UK a man named Timothy Evans was hanged in 1950 after being convicted for two murder that had been committed by his neighbor. After wards this made the UK to abolish the death penalty.

Retentionist – Why some insist that the death penalty should stay

This opinion is popularly held by the retentionist as it is believed that punishment should be “an eye for an eye” retentionist center their argument around the justification of fairness, retribution, deterrence, economy and popularity.

In the case of Gregg v. Georgia the court held that death penalty isn’t cruel and not an unusual punishment. In Nigeria, the signing not the death sentence by Oshiomole has been praised by proponents of this school. While abolitionist raise “racial discrimination” as a ground, the court in Mcckleskey V. Kempheod that statistical evidence of racial discrimination in death sentencing couldn’t establish a violation if the 14th amendment of their constitution.

Presently about 56 countries have retained the capital punishment. Although most nations have abolished it, over 60% of the world’s population still live in countries were death penalty is retained. E.g China, India, japan, & Indonesia. The UN introduced a resolution during the general assembly’s 62nd session calling for a universal ban.

In this resolution, 52 countries voted against the proposed universal ban. A range if amendment subsequently proposed by a small minority of pro-death countries were overwhelmingly defeated.

The views proffered by the retentionist in support of death penalty include that:

  1. Capital punishment actually deters crime
  2. Some crimes deserve nothing less than capital punishments
  3. The nexus of carrying out capital punishment is not as inhumane as it used to be. It should be noted that in carrying out death sentence, there is no easy or humane way.
  4. We are in the time of due process and constitutional democracy
  5. It is necessary to state that capital punishment may make for vendetta or self-help.

The administration of criminal justice act (2015) has provided for capital punishment bin some of its sections for instance, section 402(1)(2). Section 4 also provides for the position of pregnant women.

In conclusion, a poll was conducted in Washington & released in July 12th 2018, it found that 69% preferred the idea if life imprisonment to death penalty. The argument as regards the justifications of the death penalty remains of utmost importance. Regardless if whatever opinions are proffered, its relevance cannot go into Oblivion.

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)

Definition of Crime (Criminal Law)


What is a crime? Can we get an all-encompassing definition for it? Continue reading.

The traditional debate over the definition or crime has not been grounded within the context if the more fundamental images of crime that actually guide the realms of criminological works. Prior to the present dispensation, scholarly attempts have been made by jurist in the quest of defining the term “crime”.

This effort has been like the pouring of water into the basket because unlike most germane legal concepts, the word crime is devoid of a universally accepted meaning. Thus, must be in line with the fact that the concept itself is a complex but elusive one which has therefore defiled every successful effort are ascertaining its exact meaning.

In the same vein, Justice Ayebe in his book “customary law: the war without arms” described the attempt to defines crime as “flirting with definition”. In fact, professor Glanville Williams has described the difficult task of attempting an accurate definition of a crime as “one of the thorny intellectual problems of the law”.

The debate over the definition of crime usually centers on the relative advantages and disadvantages of using “social” as opposed to a “legal definition” most criminologist have traditionally relied on the legal definition which defined it as a behavior in violation of the law.

However, there have been repeated attempts to move beyond this narrow confine, thus according to JWC turner, he posited that “the definition of crime has always been regarded as a matter of great difficulty”

The obvious reasons for this according to him is that

…the truth appears to be that no satisfactory definition has yet been achieved & that is indeed not possible to discover a legal definition of crime which can be of value for English law

The problematic nature surrounding the definition of crime under the English law has equal force under the Nigerian of crime. This cannot otherwise be so, in view of the colonial affiliation between the English common law and the Nigerian law. The Nigerian law of crime has therefore inherited intoto the concept of crime under the English law as well as its complex nature.

In order to do justice to this pertinent question, several dictionaries have likewise attempted to define the word “crime” thus, the Osborne dictionary defines it as: “an act default if conduct prejudicial to the community, the commission of which by law renders the person responsible liable to punishment by fine ii imprisonment in special proceedings..”

Similarly, the Oxford dictionary sees crime as “an act punishable by law as being forbidden by statute or injurious to the public welfare”.

The Black’s law dictionary went further to define crime as an “act or omission rendered punishable by the state”

Furthermore, the principal statutes regulating the Nigerian criminal law namely: the criminal code & the penal code offered no comprehensive definition to the meaning of a crime. Thus, section 2 of the criminal code, defines crime as “an act or omission which renders the person doing the act or making the custom liable to punishment under the code..”

Scholars & writers have argued that thus definition is indeed in that it is silent on the “elements of an offence” it omitted the “mental element” & that a good definition must accommodate both the “physical & mental element”

In the same vein, section 28 of the penal code simply provides ” except where otherwise appears from the context the word “offence” includes an offense under any law for the time being in force”.

Without doubt this definition is antiquated, failing to define the very term it sets to define.

Diverse views & concept have been laid down by scholars, thus, Earl Jowit defined crime as
“An act of default which tends to the prejudice of the community & is forbidden by law or pain of punishment at the instance of the state”.

Also, Sir James Stephen stated that “crime is an act forbidden by law & revolting to the moral sentiments of the society”
Nigerian jurists have also attempted, thus, Justice Karibi-Whyte in one of his writings stated that the only noticeable difference between the lay conception of crime & the lawyer’s conception of it is one between what the law ought to describe & what is actually designated namely “the ought & is” of law.

In the case of Liman v. State (2016) LPELR-40260 CA, the learned Justice Amina audi JCA stated that
“It is trite that criminal responsibility for the commission of crime is premised on the satisfactory proof of the two pillars if actus reus & mens rea.

In an attempt to define crime, Abiru JCA employed this view in the case of Njoku V. State (2017) LPELR 41250 CA.
From the foregoing, rather than travelling on a futile voyage of discovery at ascertaining the exact meaning and precise definition of crime, it is better to ascertain the scope and legal framework of crime.

To this end, the classical exposition of Lord Atkin in Proprietary Articles trade association V. A.G for canada becomes imperative. His lordship stated “The criminal quality if an act cannot be discerned by intuition nor can it be discovered by reference to any standard but one is the act prohibited by penal consequences”.

From the above, since no accurate definition can be offered, it may be safe to conclude that indeed, “Crime is what the state declares it to be”.

Contributed by: Abdulganiyu Ismail (AKA) Mastermind
Prepared and Written by: Ucheakonam Chijioke Joshua (CJ)