_By Ogungbe Barakat Ebunoluwa_

Definition is given by individuals or set of individuals according to their ideas, idiosyncrasies, ideologies and perspective of the subject. The Black’s Law dictionary defines murder as “the crime committed where a person of sound mind and discretion (that is, of sufficient age to form and execute a criminal design and not legally “insane”) kills any human creature in being (excluding quick but unborn children) and in the peace of the state or nation (including all persons except the military forces of the public enemy in time of war or battle) without any warrant, justification or excuse  in law. With malice aforethought express or implied, that is, with a deliberate purpose or a design or determination distinctly formed in the mind before the commission of the act, provided that death results from the injury inflicted within one year and a day after it’s infliction”.

The Super Court in the case of PAUL V STATE(2019)LPELR 47386(SC) defined culpable homicide as the act of killing of a person or persons. It is the act of purposely, knowingly or recklessly or negligently causing the death of a human being.

Statutorily, the offence of murder is contained in SECTION 316 of the CRIMINAL CODE ACT (herein after referred to as CCA). This provision encapsulates six circumstances where a person would be guilty of murder. They are contained in Section 316 subsections 1 – 6 of the CCA. 
a. if the offender intends to cause the death of the person killed, or that of some other persons.
b. if the offender intends to do to the person killed or to some other person some grievous harm. see subsections 1 and 2 of Section 316 of the CCA.
These two provisions clarifies that as long as a  person has the intention to kill or cause grievous bodily harm to the person killed or other persons, such and individual is guilty of murder. See the cases of OBUDU V STATE (1999)6NWLR (pt1980) 433 as well as MAIGARI V STATE LOR(law online report) (5/7/2013)(SC)

Section 316 (3) of the CCA, it provides that “if the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life”. This simply means that if an offender kills a person as a result of carrying out an unlawful act or an act not permitted by the law , such a person is guilty of murder. In the case of R V GOULD & BARNES(1969)Q.d.R.283, the court held that “ make a man guilty of murder if, without any intent to do grievous bodily harm, he killed by an unlawful act, which in fact was likely to endanger human life”.

Also in HYAM V DPP(1974)2 ALL ER 41, the court held that “ if the accused knows that the act is likely to cause death or grievous bodily harm,and conciously accepts that risk, it is murder”

Section 316(5) of the CCA provides that “if death is caused by administering any stupefying or overpowering things for either of the purposes last aforementioned”. To clarify this, if an individual had offered the deceased some drugs which has overpowering effect on the deceased which in fact led to the death of the deceased, such an individual is guilty of murder. See the case of OSADIAYE V STATE(1977)4 FSC 105.

Section 316(6) of the CCA provides that “if death is caused by willfully stopping the breath of any person for either of such purposes”. In the case of DPP V BEARD (1920)AC 479, where the accused in order to facilitate the commission of rape on a victim grabbed her throat, he was guilty of murder.

In other to prove Murder under the common law, the prosecution must prove MENS REA and ACTUS REUS. His Lordship, Niki Tobi JSC(as he then was) in ABEKE V STATE (2007) LPELR-31(SC) stated that “mens rea means a guilty mind and Actus reus means a guilty act. Put in another language, the guilty mind instigates the guilty Act or flows into the guilty Act”.

The Supreme Court in MOHAMMED V THE STATE(1991)LPELR 1901(SC) stated that “Mens rea revolves in the intent of the accused person. If the accused person intended in his action and proceeds to carry it out, then the mens rea and Actus reus have been proved”.  In other words, mens rea is the intention to carry out an unlawful act while Actus reus is the result of the accused unlawful intentions.

Over the years, the courts have provided ingredients of the offence of murder.  In the case of OCHI V STATE (2018) LPELR – 45064(CA),  the Court of Appeal enumerated five essential ingredients to be proved by the prosecution in order to establish the offence of murder. These ingredients are as follows:
a) That the death of a human being has occurred
b) That the act or omission that led to the death of the deceased was that of the accused.
c) That the act or omission of the accused was intentional knowing that death or grevious bodily harm will result.
d) That there was no lawful excuse for the act or omission of the accused
e) That the death occurred within a year and a day off the act or omission of the accused.

However, the Supreme Court in the case of STATE V SUNDAY (2019) LPELR -46943(SC) stated that the prosecution must prove beyond reasonable doubt the following
a) That the deceased died
b) That it was the unlawful act or omission of the accused which caused the death of the deceased.
c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was it’s probable consequence.
See also the case of DARE JIMOH V STATE (2014) AELR 3166(SC)

Note importantly that the burden of proving the offence of murder as in any criminal case lies in the prosecution and the burden of proof does not shift and he must prove his case beyond reasonable doubt. See CHIAMAKA NNAJIOFOR v. PEOPLE OF LAGOS STATE (2015) AELR 6534, NWOSU v. STATE (2015) AELR 8772 (CA).

_Ogungbe Barakat Ebunoluwa_

Faculty of Law, University of Ilorin.

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