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The Law Column of ALABINGO, to be referred to as LAW DIGEST ,shall be anchored by ORJI EBERECHUKWU ERIC AND ONYENZE STANLEY. These are erudite and consummate Legal Practitioners based in Lagos with cognate experience, exposure and knowledge of the Law and practice. The intendment of the column is to discuss the Law as precise as possible, simplifying it even for the understanding and appreciation of an ordinary man, but, without losing sight of the principles and or doctrines of Law therein enshrined.

The Column will comprise three modules; the Basic Legal Knowledge section, the Issue Based Section and the interactive section ( Ask the Lawyer) . The Basic Legal Knowledge Module will take the form of different Topics and Heads in Law, under the Issue Based Module, trending Legal Issues shall be discussed. Some issues, whether trending or not, may also be raised and addressed, making public, in a simplified mode the position of the Law while the interactive section ( Ask the Lawyer) will deal with questions from our readers.

The idea of creating this forum, is to accord everyone the opportunity of being a teacher and at the same time a learner, with yours sincerely, piloting the narratives, so we are by no means expecting a docile audience.

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Welcome on board ladies and gentlemen as we prance, shuttle and romp into the wide, intriguing, stimulating and at times, weird terrain of the Law.

Human Rights Under Chapter iv of The Constitution- Part 2

In our last discussion, we explained that the rights provided under Chapter IV of the 1999 Constitution (as amended) are justiciable (enforceable). These rights were listed. We shall discuss the rights in some details in relation to other laws created to ensure that they are protected; taking cognizance of the fact that the constitution is the basic law of the land forming the basis for other laws.


It is a popular saying that life is sacrosanct. The law recognizes this and ensures that it is protected. Section 33 of the Constitution provides for right to life to the effect that a person shall not intentionally be deprived of his life except in execution of court sentence when the person is found guilty of an offence. The court sentence here refers to death sentence in respect of capital offences. In Nigeria, such offences include murder, armed robbery, and treason punishable with mandatory death sentence. Therefore, a person cannot be said to have violated this right if he executes such a convict in accordance with the law. Thus, where A is convicted by a court of competent jurisdiction (power and authority to so do) and B is mandated to execute A being a member of the firing squad, B cannot be said to have committed the crime of murder by such execution of A.

Exceptions to right to life include where the killer acted in self-defense; in the process of effecting a lawful arrest or to prevent escape from lawful detention or for the purpose of suppressing a riot, insurrection or mutiny. In all these, what is considered is whether the person taking another person’s life acted reasonably in the circumstance. In Ibikunle v State (2007) 12 MJSC 184, a police officer who fired into a room in the process of trying to effect arrest of a supposed armed robber, killing one of the occupants mistaken to be the robber, was convicted of murder on the ground that the use of force was not reasonable under the circumstances.

Exceptions to right to life include where the killer acted in self-defense; in the process of effecting a lawful arrest or to prevent escape from lawful detention or for the purpose of suppressing a riot, insurrection or mutiny. In all these cases, what is considered is whether the person taking another person’s life acted reasonably in the circumstance. Section 33:1, 2 (a-c) of the Constitution as amended. In Ibikunle v State (2007) 12 MJSC 184, a police officer who fired into a room in the process of trying to effect arrest of a supposed armed robber, killing one of the occupants mistaken to be the robber, was convicted of murder on the ground that the use of force was not reasonable in the circumstance.

The offence of homicide is created to protect the right to life. Homicide means the unlawful killing of a human being; in other words, killing a human being in a way not authorized, justified or excused by law. Under the Penal Code, operating in the Northern states, it is known as culpable homicide. Section 315 of the Criminal Code which is operational in the Southern states provides for the offence of homicide to the effect that any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case. Section 220 of the Penal Code which is on all fours with 315 of the Criminal Code, generally provides for the offence of culpable homicide.

Homicide is made up of two different offences, namely, murder and manslaughter (under the Criminal Code) or culpable homicide punishable with death and culpable homicide not punishable with death (under the Penal Code). In other words, while murder is equivalent to culpable homicide punishable with death, manslaughter is equivalent to culpable homicide not punishable with death. While the former is a capital offence punishable by death, the latter is punishable by life imprisonment.


Section 316 of the Criminal Code states that a person who unlawfully kills another under any of the circumstances outlined in the section is guilty of murder while sections 221 of the Penal Code provide for the circumstances where culpable homicide is punishable by death. The ingredients of the offences in both provisions are similar.

For a person to be convicted of murder or culpable homicide punishable with death, the prosecution must prove beyond reasonable doubt the following elements of the offence:

  1. That the deceased died
  2. That it was the act or omission of the accused person that caused the death of the deceased
  3. That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

See Fatai v, State (2013) 2-3 MJSC (Pt. I) 145 at 170-171; Ochiba v State (2011) 12 S.C. 79 at 96; Iliyasu v, State (2015) 2 MJSC (Pt. II) 33 at 60,89,90,94

This is captured in the Latin maxim; “actus non facit reum, nisi mens sit rear”. The prosecution will not only establish that the action of the accused led to the death of the deceased, but also the common intention of the accused to commit the said offence of murder or culpable homicide punishable with death.

Establishing the death of the deceased is usually the simplest task by the prosecution. This can be proved by a medical report, pictures and or oral evidence. Circumstantial evidence can also show the death of the deceased. The death of a person can be proved even though the body is not found. See Abukokuyanro v State   (2016) 2-3 MJSC 106 at 126.

The cause of death must also be established, that is, that it was the act of the accused that caused the death of the deceased. This onus on the prosecution can be discharged either by direct or circumstantial evidence. It follows, therefore, that where A is accused of killing B, it must be established by direct or circumstantial evidence a link between the acts of A and the death of B.  See Jimoh v State   (2014) 3 MJSC 1 at 44.

Direct evidence is the evidence of an eyewitness who testifies to the effect that it was the accused who killed the deceased. Circumstantial evidence, on the other hand, is inferred from the circumstances of the case which unequivocally link the accused with the murder of the deceased. In Iliyasa v. State   (supra), the Appellant and the deceased were involved in an argument over some money. Both of them passed the night in the Appellant’s room. The following day the deceased could not be found. Blood was seen splashed on the walls of the Appellant’s room and a dead body, which turned out to be the body of the deceased was found half buried in his compound. The appellant had also purchased some gallons of paint to cover the splashes of blood on the walls. This was held to be enough circumstantial evidence that the accused killed the deceased. This is also a good example of the doctrine of last seen, which is applicable in our criminal law, to the effect that a person last seen with a deceased is presumed to be the killer and has the responsibility to give an explanation on how the deceased met his death. In some cases, medical evidence is necessary to establish the cause of death, but where the cause of death is obvious, medical evidence becomes of no practical necessity. See Amayo v. State (2002) 3 MJSC 181 at 194; Aiguoreghian v. State (2004) 3 MJSC 18171 at 101-102.

It is the responsibility of the prosecution to establish a clear nexus between the act of the accused and the death of the deceased in the absence of which the charge of murder cannot be sustained. It is not enough to say that the act of the accused could have caused the death of the deceased, but that it actually caused the death. See Alao v. State (2015) 5 MJSC 35 at 57 where the Supreme Court held that where there is any intervening factor as could create some doubts on the actual cause of the death of the deceased, such doubt created must be resolved in favour of the accused.  Thus in Oketalegun v. State (2015) 7 MJSC 128, the deceased did not die immediately after the assault by the accused, but later in the hospital and the doctor’s report showed the cause of death to be a medical condition caused by diabetes and hypertension.  Conviction of the accused was mitigated to attempted murder on appeal.

After proving the death and act of the accused as the cause, the prosecution now has the task of proving the all important mental elements, to wit, intention of the accused to cause death or grievous harm (the mens rea).In other words, it must be shown that the accused wilfully did the act knowing that death or grievous harm could result from it. This is known as specific intention and the most difficult element to prove. See Amayo v. State (supra) at 195. If the act was done involuntarily, accidentally, negligently or recklessly, it will not amount to murder. Because it is not possible to know the heart of man, intention is inferred from overt act. If a man stabs another in the chest with a dagger, it will be inferred from the act that he intended to kill him or at least to cause him a bodily harm. In Ogbu v State (2007) 2 SC 274, the Appellants who, in the course of a fight, lifted the deceased by the legs and hit his head on the ground which led to his death, were held to have the intention to kill him. But in Kumbin v. Bauchi Authority (1963) NNLR 49 a slight blow which caused death due to a medical condition unknown to the Appellant was held not to have been intended to cause death or that it was likely to cause it and the conviction of the Appellant for murder, reduced on appeal to manslaughter, was further reduced to the lesser offence of causing death when intending to cause hurt only.

Section 316 of the Criminal Code and section 221 of the Penal Code sate the circumstances under which killing will amount to murder.

It is only a human being capable of being killed whose death can constitute the element of murder. A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not. See S. 307 of the Criminal Code. Therefore, the belief of some religious adherents that abortion is murder does not apply here. Abortion is a different offence.


Citizens’ rights under the Nigerian Law


In this maiden discussion, we shall examine the rights of the citizens as provided by the Nigerian law. We chose to start with this concept due to the unarguable importance of human rights and the prominent position they occupy in every society and under the law.  

The concept of Human Rights is a very wide one. It covers all aspects of socio-economic, cultural and legal relationships. Human rights are the inherent and inalienable rights which are naturally attached to man and fundamental to his existence such that life becomes meaningless in the absence of them. They have been described as those rights which are inherent in a person by virtue of his being a human being.

Once a child is born, he becomes entitled to the rights and privileges accorded the other members of the society. Any community or society which deprives its members, any group or individuals of these rights cannot be said to be civilized because protection of human rights is an important attribute of civilization.

It follows therefore that deprivation or non-existence of human rights is an injustice and repugnant to the essence of human existence. Human rights are universal, naturally meant for and should be made available to everybody without discrimination of whatever sort.

Ensuring the promotion and protection of human rights has been the preoccupation of the international community. The global consciousness and effort towards this crusade can be traced to the events and circumstances that led to the first and second world wars. The atrocities committed during and the devastating effect of the wars prompted the world to seek ways of protecting human rights worldwide, believing that the atrocities and senseless destructions might have been averted if the world had been more vigilant.

Therefore, with the formation of the United Nations Organization (UNO) in 1945, a number of human rights provisions were incorporated into its Charter. In 1948, the Universal Declaration of Human Rights was adopted by the United Nations. This was however not meant to be binding on member-states but meant to influence the domestic laws of members on human rights. In 1966 the UNO again adopted two Covenants on human rights meant to be binding on member-states. These are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

At the regional level, the continents also establish conventions for the promotion and protection of human rights. Thus, in Africa we have the African Charter on Human and Peoples’ Rights (African Charter), containing a list of human rights, which came into effect in 1986 and has been incorporated into the Nigerian domestic laws.

Human rights recognition in Nigeria came into prominence with the Willink Commission of 1957. The Commission was setup to examine, among others, the agitation of the minority groups for creation of more states to take care of their interests. The Committee recommended the incorporation of a long list of Fundamental Human Rights in the Constitution in order to protect the interest of the minority instead of creation of states as the minority groups agitated for. Thus, from 1960 to date, Nigerian Constitutions have contained a list of human rights. In addition, the African Charter has been adopted as a part of Nigerian law by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act in line with section 12 of the 1999 Constitution as amended. (See Cap A9, Laws of the Federation of Nigeria (LFN), 2004). The effect is that the rights and obligations covered under the Charter are fully and legally enforceable in Nigeria as any other municipal law of the country.

There is a distinction between human rights and fundamental human rights. Human rights are wider in scope than fundamental human rights. Fundamental human rights are integral part of human rights. Fundamental rights are so called because they are provided for by the Constitution and made justiciable (enforceable). Therefore, before a human right is made enforceable by the law, it remains a mere right which the courts cannot enforce even if it is stated in the law.  

Like the previous Nigerian Constitutions, the 1999 Constitution (as amended) provides for human rights contained in chapters II and IV. The rights provided for under Chapter II (captioned Fundamental Objectives and Directive Principles of State Policy) are not enforceable. They are made unenforceable by Section 6 (6) (c) of the Constitution. On the other hand, the rights contained in Chapter IV of the Constitution, known as Fundamental Rights, are enforceable by the courts. In other words, a Nigerian citizen cannot go to court to enforce any of the rights stated in Chapter II, while he can enforce the rights in Chapter IV. The fundamental rights as contained under Chapter IV are as follows:

  1. Right to Life
  2. Right to Dignity of Human Person
  3. Right to Personal Liberty   
  4. Right to Fair Hearing
  5. Right to Private and Family Life
  6. Right to Freedom of Thought, Conscience and Religion
  7. Right to Freedom of Expression or the Press
  8. Right to Peaceful Assembly and Association
  9. Right to Freedom of Movement
  10. Right to Freedom from Discrimination
  11. Right to acquire and own Immovable Property anywhere in Nigeria  
  12. (Prohibition of) Compulsory Acquisition of Property


The law also makes provisions for the enforcement of these fundamental rights. This shall be discussed in our next text.

Moving Forward After A Drug Conviction – Christina Scott


The desire to change is truly the first step to moving forward and getting the most out of your life. Change is possible after being charged with a criminal act such as drug possession, but it takes a dedication to daily, diligent working to achieve your life goals.

Get Back on Track

The payoff is definitely worth it, as you will not regret a single moment that you spend taking charge of your life once again. We will discuss some of the unique challenges you will be facing, as well as their solutions.

Going Back to School

There is the idea among many people that people convicted on drug charges cannot be approved for financial aid, but this simply isn’t true. Because of this, it is advised that you do research, contact the financial office of the school of your choice, and don’t give up.

In addition, there are programs available at the local level that can include halfway houses, the United Way, and other GED programs that can help you get your high school certification if you need it. You will want to research your chosen field of study ahead of time to make sure there are no barriers to your receiving certification at a point farther down the road, so that you do not waste time and resources traveling down that path.

Finding Work

It is against the law to discriminate against someone because of holding a prior record. When you apply for a job, instead of waiting for the question to come up, write an explanation that you can attach to any application or resume that you submit.

This will give you the opportunity to explain your situation and where you life is heading now. You can use this resource to find employers willing to hire people convicted of a felony, and you can consult an attorney about the possibility of getting the conviction expunged from your record.

Other People’s Judgments

A good way to better one’s reputation is to take up volunteering or working with an organization from which you can get a good reference. Also, if your attitude, styles of dress, grooming, speech patterns, and work habits continually demonstrate the resolve of a person who takes responsibility for their life, public opinion is likely to change.


Lack of healthcare is an important issue, especially if you are leaving prison without access to diabetic or behavioral medicines. In states where Medicaid was expanded, 90% of ex-inmates are eligible for coverage. Talk to your local Social Security office as well as churches, ministries, and local organizations that can help you apply and receive medical coverage.

Talk to local doctors and their staff to see what local resources they are aware of as well.

The Right to Vote

The renewed right to vote is available in most states, though the rules and terms may vary. Click here for a listing of states and their rules. The harshest re-enfranchisement restrictions are typically reserved for those who committed violent crimes or acts of treason. You can also visit your local Department of Motor Vehicles for the complete rules of your area.

23% of people released from prison don’t go back and 46% don’t go back to drugs after rehabilitation. The most important keys to success are a willingness to leave behind the old friends and associates that you used to do drugs with, having a religious affiliation, being close to family support, and making the choice to live a different life.

The truth is that it is possible to be successful, that it’s worth it, and that it is really up to you.

John F. Marchiano Law Corp. is Henderson’s oldest law firm. John has over 35 years of professional experience providing personalized, criminal defense representation to residents of Henderson and Las Vegas, Nevada.