29 Dec



Section 4 of the Criminal Code provides;

When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.


From the above provision, we can note 3 elements of the offence of attempt.

  • Intention to commit an offence.
  • Execution of intention or Manifestation by overt acts.
  • The particular offence intended was not committed.

The maximum punishment for attempt is usually half the full punishment for the substantive offence. Section 95 Penal Code.

INTENTION TO COMMIT AN OFFENCE: Intention is the essence of attempt and the hallmark of intention is desire. Thus, there can be no attempt for involuntary acts lacking intention. Like; accident, negligence, etc.

The prosecution must establish that the accused intended to commit the offence.

Judicial decisions show that it is quite difficult to prove intention.

In R V  Seidu: The accused was alleged to have been found with a minor. He was cleaning her lap. Semen was found on the cloth. The mother of the child claimed/alleged that after examining the little girl’s private part she found that there was also semen and some blood around her private parts. Although the court accepted the testimony of the mother. Some doubt was cast. First, the doctor who examined her claimed that there was penetration and the hymen was ruptured but he could not tell if the rupture was recent. The doctor also averred that the hymen could have been ruptured through some means other than sexual intercourse. The court held that the prosecution was not able to prove beyond reasonable doubt that there was penetration as required by Section 6 of the Criminal Code which stipulates that rape is complete upon penetration. The court then held that the accused might have been gaining some other form of gratification other than sexual intercourse. He was convicted for indecent assault on a female.

In my opinion, the court reached this conclusion on the ground of policy and the notion of criminal law that proof must be beyond reasonable doubt. All things being equal, it is better for 10 guilty men to go unpunished than for an innocent man to suffer.

In R V  Offiong: The accused entered into a woman’s room uninvited, took off his clothes and actually caught hold of her. The court held that it was not sufficient to establish rape. It only showed that the man wanted to have sexual connection with her.

To establish attempted murder, the prosecution must prove that the accused intended to kill. Mere grievous bodily harm would not suffice. Section 320 of the Criminal Code. R V  Albert (1960) wnlr 31.


EXECUTION OF INTENTION OR MANIFESTATION BY OVERT ACTS Not just preparation. Except in some very dangerous acts like terrorism. Manifestation has been defined to mean: to show plainly to the mind or eye.

The English courts have often distinguished between preparation and attempt.

In R V  Unakanjo, (1933) 11 nlr 23 the court adopted a passage from Maynes, the Criminal Code of India which listed three stages this offence of attempt viz:

  • –Preparations. -Attempt.

R V  Robinson: In this case, a jeweler hid his jewellery, tied himself up and pretended like his shop has been burgled. He intended to collect the insurance money. It was held that there has been no attempt because he had not lodged any claim with the insurance company.


R V  Button: In this case, the accused entered an athletics competition falsely representing that he has never won any race. This gave him an undue advantage over the other handicapped competitors, it was held that there has been an attempt by false pretences.


Dpp V  Stonehouse: The accused, having a life assurance in favour of his wife, travelled to America and simulated death by drowning. Although no claim had been made by his wife, he was held guilty of attempting to obtain property by deception.

Various tests have been formulated to construe or calculate manifestation and attempt.

Parke B in R V  Eagleton used the proximity test: “Acts immediately connected with the offence” (proximity test).


Mr. Turner formulated the equivocality test. Where the acts of the accused are played to an audience untill the time of his arrest. If the audience can conclude that the accused wanted to commit a particular offence, then there has been as attempt. Where there are confusing views, there has been no attempt.

This equivocality test has been edited to mean; if the conduct of the accused shows prima facie his intention to commit the offence he is charged with attempting.


***A legal impossibility cannot be attempted. E.g stealing your own property, theft by an infant, and so on. However, a physical impossibility can be attempted. Haughton V  smith. (1975) a.c. 476,

R V  King (1892) and tlr 326: The accused were convicted for larceny even though the pocket they intended to pick was empty.


In R V  Odo: In this case, the accused sprayed black powder around the court room with the intention to influence judgment in his behalf. He was charged at the trial court for attempting to pervert the course of justice through supernatural means. Upon appeal his conviction was quashed.

In my own opinion, the accused has manifested his intention through some overt act by spraying black powder around the court. The court might have quashed his conviction on the ground that they still want to stand their grounds that the belief in juju is unreasonable.


***Ignorance, inexperience and ineptitude in carrying out the offence would not exculpate the accused

R V  White: The defendant tried to kill his mother but used insufficient poison. He was nevertheless convicted for attempt.


When will it be too late to withdraw from the attempt?

Haughton V  Smith: where the accused has taken more than mere preparatory steps, withdrawal is invalid.

In R V  Taylor: The accused lighted a match with the intention of setting fire on a stack of corn but withdrew when he realized that he was being watched. It was held that he has taken more than mere preparatory steps and it was too late to withdraw.


Section 512 of the Criminal Code provides that where one voluntarily repents from further prosecution of his intention, he shall be liable to one-half of the punishment which he would have otherwise be liable for.

Section 228 of the Criminal Code criminalizes the attempt to procure abortion.

Section 230 of the Criminal Code provides life imprisonment for attempted murder.



Quite eccentric really

Comment (8)

Splendid work sir, really helpful


Grateful to be of service.

Okorie Sylvia

I see you ooo my unilag people😹..
thank you so much was really helpful 😊


Glad to be of help.

Ahmed Abubakar

we’re very greatful with your contribution.


It is my pleasure.


Very helpful, thanks for your contribution


You are welcome.


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