WITH BEN IJEOMA ADIGWE CHmC

The killing of a human being by an­other human being is called homi­cide. Early common law regarded all homicide as inexcusable. However with the development of the doctrine of mens rea it became possible to differentiate between lawful and unlawful homicide. Not every killing of a human being is unlawful. Section 306 of the criminal code provides that the killing of a human being is unlawful unless it is authorized or justified or excused by law. Logically therefore, a killing which is authorized or justified or excused by law is not unlaw­ful. The criminal code therefore makes provisions under which a killing may be held lawful.

The executioner of a condemned crimi­nal is authorized to so do. Such killing is not unlawful provided it is carried out in the manner prescribed by law. Under section 286 of the criminal code when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault. If 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 pre­serves the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

Where two people are merely fighting and one of them kills the other, the killing is unlawful and is at least manslaughter. It is sometimes difficult to differenti­ate between self-defence and fighting. Under section 288 of the criminal code 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 force for the purpose of defending the person assaulted. But if the assistance was given after the assault has ceased then a defence under this section will fail.

Section 282of the criminal code allows the peaceable possessor of a dwelling house and anybody lawfully assisting him or acting by his authority to use such force as he believes on reason­able grounds to be necessary in order to prevent the forcible breaking and entering of the dwelling house by any person whom he reasonably believes to be attempting to break and enter such dwelling house with intent to commit a felony or misdemeanor therein. In Rv. Ebi 1936 15W.A.C.A 36 the accused who had a house in a certain town was in the house when a riot broke out in the town. The rioters broke and destroyed parts of the house and continued to so do. In exasperation, the accused fired a gun into the crowed which killed someone. In a charge for murder he was held not liable as the killing was justifiable in defence of his property.

If death is caused by misadventure, then it is excusable. Misadventure occurs when one kills another in purely acci­dental circumstances without intending to cause death or unlawful harm and without gross negligence.

By section 271 of the criminal code when a peace officer or police officer is pro­ceeding lawfully to arrest, with or without a warrant, a person for an offence which is a felony, and such that the offender may be arrested without a warrant , and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested; and, if the offence is such that the offender may be punished with death or with impris­onment for seven years or more, may kill him if he cannot by any means otherwise be arrested.

As regards killing of thieves, there is no law which authorizes the killing of some­one just because he is a notorious thief or because he was caught stealing. A person may lawfully kill in order to suppress a riot provided that the danger to be apprehended from the continuance of the riot warrants such killing. A person who kills another person who consented to his death is not excused. He is still liable for murder. In State v. Okezi 1972 2 E.C.S.L.R 419 the accused who was a native doctor prepared some charms for the deceased. The deceased then invited him 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 of murder.

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