INTRODUCTION

Intoxication may mean a state in which a person’s capacity to act or reason is

inhibited by an alcohol or drugs. And this intoxication shall be deemed to include a
state produced by narcotic or drugs. This is evident in section 29(5) of Criminal
Code.

In GODFREY IMASUEN V. THE STATE (2014) AELR 2926(CA), the word

‘intoxication’ was defined in the legal sense and was best described by its effects
on human sense of reasoning. It is ‘defect of reasoning from drunkeness’ and the
different effects are categorized:

(a) Drunkenness may impair a man’s power of perception so that he may not be
able to foresee or measure the consequence of his actions as he would if he
were sober. Nevertheless, the law does not allow him to set up self induced
want of perception as a defendce. Even if the appellant alleged he had not
appreciate that what he was doing was dangerous, nevertheless, if a
reasonable man in his place who was not befuddled with drink would have
appreciated if he is guilty.
(b) It may impair a man’s power to judge between right and wrong so that he
may do a thing when drunk which he would not dream of doing when sober.
Though he does not realise that he is doing wrong nevertheless, he is not
allowed by section 29(2)(a) of the Criminal Code to set up his self- induced
want of moral sense as a defence.
(c) It may impair man’s power of self-control so that he may more readily give
way to provocation, than if he were sober.

These are the definitions of the word “intoxication” by going through section 29(5)
of Criminal Code and the case of GODFREY IMASUEN V. THE STATE(supra).

DEFENCE OF INTOXICATION

Anything or any argument that is advanced or presented before the court by the
accused person in order to exonerate himself or herself from being liable from the
Actus Reaus he/she had committed, is called “defence”. Therefore, the defence of
intoxication is a defence available to the accused person on the basis that because

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of the intoxication, the defendant did not understand the nature and gravity of
his/her acts or know what he/she was doing.

Note that, an intoxicated person is incapable of acting as an ordinary prudent

cautious person; therefore, in recognition of this factor, the law may allow
intoxication to be used as a defense to certain number of crimes. The defence of
intoxication applies in very limited circumstances and typically depends on
whether the intoxication was voluntary or involuntary and what level of intent is
essential or required to constitute the offence.

Section 29 of the Criminal Code provides:

1- Save as provided in this section, intoxication shall not constitute a defence to

any criminal charge.
2- Intoxication shall be a defence to any criminal charge if by reason thereof
the person charged at the time of the act or omission complain of did not
know that such act or omission was wrong or did not know what he was
doing.
(a) the state of intoxication was caused without his consent by the malicious or
negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or
otherwise, at the time of such act or omission.
3- Where the preceding section is established, then in a case falling under
paragraph (a) thereof, the accused shall be discharged, and in a case falling
under paragraph (b), section 229 and 230 of the Criminal Procedure Act
shall apply’
4- Intoxication shall be taken into account for the purpose of determining
whether the person charged had formed any intention, specific or otherwise,
in the absence of which he could be not be guilty of the offence.
5- For the purpose of this section , “intoxication” shall be deemed to include a
state produced by narcotics or drugs.

This entire section 29 of the Criminal Code will be our point of reference with
regards to the areas where the defence of intoxication serves as a complete defence
to a crime charged, and where it is incomplete defence, and even where it is not a

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defence at all. So, by going through the above mentioned section, we may
conclude that an intoxication will be a defence if:

(a) Intoxication is caused by the negligent or malicious act of another; or

(b) The person charged was by reason of intoxication insane temporarily or
otherwise at the time of such act or omission.

However, intoxication per se is not a defence. To be a defence, it must be shown

by the accused that the intoxication is not self-induced or that the extent of it
rendered him at the time of the act or omission insane temporarily or otherwise,
that is that he did not know what he was doing. This is explicit in the case of
Ahmed v. State (1999).

In the case of intoxication as a defence, proving a specific intent is very important

which helps to identify the Mens Rea. If the facts of specific intent is proved, it
could be said that the defence of intoxication ,whether voluntary or involuntary
would not avail a person. Sometimes, the defence of intoxication leads to acquittal
and discharge as mentioned in section 29(3) of the Criminal Code, it also serves as
a mitigating factor to the punishment, and in some situation it does not even serve
as a mitigating factor. These are the issues to be looked into our presentation,
which make the defence of intoxication not to be absolute. Therefore, in order to
achieve that, the issue of voluntary and involuntary intoxication must come up.

INVOLUNTARY INTOXICATION

Intoxication is a defence available to criminal defendants on the basis that, because

of intoxication , the defendant did not understand the nature of his/her actions or
know what he/she was doing. The intoxication defence applies in a very limited
circumstances and typically depends on whether the intoxication was voluntary or
involuntary and what level of intent is required by the criminal charge.

Involuntary intoxication occurs when someone is tricked into consuming a

substance like drugs or alcohol, or when someone is forced to do so. Involuntary
intoxication may also occur as a result of an allergy to, or the intended effects of a
legal prescription medication.

If a charged crime is a specific intent crime, meaning that the criminal defendant
must have had the specific intent to commit the crime in question, involuntary

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intoxication can be a defence to criminal charges, if it prevents the defendants from
forming the intent that is required.

Under section 29(1) of the Criminal Code, intoxication per se does not provide a
defence to a criminal charge as it was decided in the case of Karimu V. State
(1989) 1 N.W.L.R. pt. 96 at 124. It constitutes a defence under subsection (2) of
the same section if by reason of intoxication the accused did not know at the time
of the act or omission that such an act or omission was wrong or did not know
what he was doing:

(a) The intoxication was caused by the malicious or negligent act of another
without his knowledge; and
(b) The accused was by reason of intoxication temporarily insane or othyerwise
at the time of such act or omission.

So also, section 52 of the Penal Code provided that “nothing is an offence which is
done by a person who, at the time of doing it, is, by reason of intoxication caused
by something administered to him without his knowledge or against his will,
incapable of knowing the nature of the act, or that he is doing what is neither
wrong or contrary to the law.

In Imasuen V. the State (supra), the court held that, the locus classicus on the
defence of drunkenness or intoxication seems to be Egbe Nkano V. the State
(1980) 3-4 (SC), where Lord Obasike, JSC; expounded the law thus:

“what is intoxication “ in the legal sense? It is best described by its effect on the
human sense of reasoning. It is defect of reasoning arising from drunkenness”.

In Ekwe V. State (1995) JELR 75985 (SC), the court had considered whether
intoxication is a defence to a criminal charge under section 29(2) of the Criminal
Code, in the case of John Imo V. the State (1991) 9 N.W.L.R. (pt.123) 1 at p. 21.
In a unanimous decision, the Learned Justice, Wali JSC; writing the judgement,
held that, “prima facie drunkenness is not a defence to criminal charge, as every
person of the age of discretion is presumed to be sane and to have intended the
natural consequences of his action. But evidence of drunkenness which renders the
accused incapable of forming the specific intent essential to constitute the crime,
with other facts proved are taken into consideration in order to determine whether

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he had that intent. Be it noted that mere absence of motive for a crime however
atrocious it may be, in the absence of proof of insanity, or evidence of drunkenness
that produce such degree of madness even for me, as to render the accused
incapable of distinguishing right from wrong, can not avail the appellant of the
defence provided in section 28 and 29 of the Criminal Code. This is in the case
Nkwuda Nkwelebe V. the Queen (1963) 1 SCNLR 311. The test to be applied is
whether by reason of drunkenness, the accused person was incapable of forming an
intention of committing the offence.

WHEN A DEFENCE OF INTOXICATION WOULD AVAIL AN ACCUSED

PERSON?

The Criminal Code recognizes that there may be involuntary intoxication as

envisaged by the provisions of section 29 (2) (a). when such is the case, the
defendant who may rely on defence of intoxication shall succeed on it.

In Imo V. the State (1991) JERL 43048 (SC), the question when is a defence of
intoxication be a good defence under section 29 of the Criminal Code? Was
proposed , to approach the question correctly, it is necessary to note that under
English Law, part of which has been received and incorporated in the Criminal
Code, drunkenness per se is not an excuse for a crime, Sir Edward Coke told us (1
inst. 247):

“ a drunkard who is voluntarius daemon, has no privilege thereby: out

what hurt or ill so ever he doth: his drunkenness, although drunkenness is
not excuse for any crime what ever, yet it is often of very great importance
where it is a question of intention”.

For a defence of intoxication to be available to an accused person as a defence, he

must prove on a preponderance of evidence that, at the time of the act or omission
that is called in question, he was so drunk that he did not know that such an act or
omission was wrong or he did not know what he was doing.

Furthermore, he has also to prove either that the state of intoxication was not self-
induced; as was decided in the case of Theophilus V. the State (1996) JELR 45948
(SC0), but was caused without his consent, by malicious or negligent act of another
person (section 29(a) of the Criminal Code) or that the degree of intoxication was

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so high that he was insane, temporarily or otherwise at the time of the act or
omission (section 29(2)(b) of the Criminal Code).

The issue here is how then can one ascertain how involuntary the intoxication may
be taken into account the circumstances which gave rise to the defendant
committing the crime? Also, consent or knowledge may imply that defence of
intoxication would not stand if the defendant gave his consent having full
knowledge of the situation. The English case of DPP V. Beard (1920)A.C. 479;
may have proffered an answer to this where it was held that, so long as the
defendant was drunk and his drunken state so impaired his judgmental abilities
that he was unable to form an intention to commit a crime, intoxication shall be
taken into account for the purpose of determining whether the person charged had
formed any intent, specific or otherwise. Where there is absence of intent, then the
defendant would not be guilty of the offence complaint of. In the case of
Nkwulebe V. the Queen (supra), the court held that, mere absence of motive for a
crime, however atrocious it may be, in the absence of proof of insanity, or evidence
to drunkenness that produces such a degree of madness, even for a time, as to
render the accused incapable of distinguishing wrong from right, can not avail the
defendant of the defence of intoxication as provided in section 28 and 29 of the
Penal Code.

Therefore, in Imasuen V. the State (supra), for a defence of intoxication or insane

delusion to avail an accused person his reaction to the state of things as believed by
him must be such that it could be regarded as legitimate and natural reaction to
such state of things, as in the case of Egbe V. Nkanu (supra).

It is worthy to note that, the provisions of the Penal Code did not recognize
voluntary intoxication. It is also suggested that the provisions in section 51 of the
Penal Code as regard insanity be interpreted to include cases where ‘unsoundness
of mind’ is brought about by intoxication even though voluntary. By using
identical phraseology with section 52(i.e involuntary intoxication), one gets the
impression that under the Penal Code, only voluntary intoxication that leads to
temporary insanity is recognized, in other words, insanity as defined in section 51
of the Penal Code can be brought about by involuntary intoxication but not by
voluntary intoxication. This of course, will be absurd. In any case, an accused will
prefer to plead involuntary intoxication rather than insanity, which if accepted, will

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result in his being sent to an asylum for an indefinite period. What ought to have
been included in the Penal Code is a provision similar to section 29(2)(b) of the
Criminal Code; which recognizes the simple fact that, temporary insanity caused
by drink is still insanity and can be pleaded as a defence. The absence of such a
provision in the Penal Code has led to absurd interpretations. With S.S.
Richardson for instance saying ‘drunkenness cannot be pleaded as form of
temporary insanity’.

VOLUNTARY INTOXICATION AS A DEFENCE TO CRIMINAL

LIABILITY

DEFINITION OF VOLUNTARY INTOXICATION

Voluntary intoxication can be legally defined as the willing ingestion or injection

of any drink, or other intoxicating substance that, the defendant knows can produce
an intoxicating effect.

Voluntary intoxication can also be defined as intoxicating oneself with the

knowledge of getting impaired. It is done by the intake of any alcohol or drug
while, in the instance, the person consuming such substance will be in a position
that will be physically and mentally impaired.

More so, it occurs as a result of voluntary consumption of alcohol or drugs

provided that in the case of a drug, it is well known for being liable to cause
unpredictability or aggressiveness.

However, having clearly established the definition of voluntary intoxication in the

eyes of law, we need to narrow down and pin point on its position under both
Criminal Code and Penal Code, respectively.

VOLUNTARY INTOXICATION UNDER THE CRIMINAL CODE

Basically, it is a well settled principle of law that, voluntary intoxication is never a

defence that can be mounted independently of the elements of the crime that the
defendant has been charged with.

Voluntary intoxication cannot be used as a defence to any crime, but however, it

can be used to negate the ‘intent’ required to commit a crime.

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In respect of this, most of the jurisdiction allows a defendant to use or plead
voluntary intoxication as a defence to ‘specific’ intent crimes only. Thus, if any
defendant is charged with a ‘general intent’ crime, he cannot plead the defence of
involuntary intoxication at all.

At this juncture, a critical look needs to narrow down the specific and general
intent crimes before embarking on the provisions of the Criminal Code.

GENERAL INTENT

General intent needs only to commit an act which the law makes criminal. Under
this intent, the requirements is that, only that you intent to perform the act, i.e, you
don’t need any additional intention or purpose. It clearly refers to your state of
mind at the time the crime was committed. A general intent crimes only requires an
intend to do an act that law declares to be a crime, even though, the perpetrator
may not know the act is unlawful. On this vein, it requires no further mental state
beyond a willingness to commit a crime. For example, as an offence, is a general
intent crime on the ground that, the prosecution only ought to prove that you
‘intentionally or recklessly touched a person in a harmful or offensive manner’.
Criminal force does not require an additional mental state. You don’t have to intent
to hurt the person in order to be convicted; other examples are: Assault, Rape,
Manslaughter, Arson, etc.

SPECIFIC INTENT

They are crimes that require the individual to have a desire to commit an act, as
well as intent to achieve a specific result. A criminal defendant must have had the
specific intent to commit the crime in question. It is totally refers to the state of
mind of the defendant at the time of the commission of the crime. In a nutshell,
these crimes does not only base on doing an unlawful act, but the doing of it with
an additional subjective intent. It must however be noted that, specific intent
crimes are usually indicated in the statute by the use of such words as
‘intentionally’, knowingly, purposely or willfully’. Example of these crimes is:
Murder, Theft, Conspiracy, Robbery, Forgery, etc. hence, it is however worth of
note at this juncture, to eliminate on the position of the law on voluntary
intoxication under the Criminal Code.

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Section 29(2) of the Criminal Code provides that:

Intoxication shall be a defence to any criminal charge if by reason thereof the

person charged at the time of the act or omission complained of did not know that
such act or omission was wrong or did not what he was doing:

(a) The state of intoxication was caused without his consent by the malicious or
negligent act of another person ; or
(b) The person charged was by reason of intoxication insane, temporarily or
otherwise at the time of such act or omission.

This stated provision had been commented on by Okonkwo and Naish, that a
person who commits a crime while drunk could be exempted if, at the time of
committing the alleged offence, he did not form the necessary intent though, he
might have been able to.

In line with section 29 (2) of the Criminal Code, the prosecution ought to adduce
evidence to show that the accused had the capacity to form the necessary intent,
and must go further to prove subjectively that, the accused indeed did in fact, form
that intent without which he will not be liable. Hence, it is pertinent importance to
note that, any case that involves voluntary intoxication, the court ought to look and
examine the weapon used or the body of the victim, and other relevant matters as
indicatives of accused’s malicious intent.

In the case of R. V. Retrief, the East Afrcan Court of Appeal rejected the defence
of voluntary intoxication, on the ground that, the lethal weapon used was obviously
indicative of his malicious intent to kill or inflict grievous bodily harm. It must also
be noted that, most of the crimes impose on objective liability and therefore, any
person that commits any of them will suffer by reason of his drunkenness. It is well
settled law in both England and Nigeria that, where a person gets drunk voluntarily
in order to have courage to commit a crime, section 29(2) of the Criminal Code
will preclude such person to raise the defence of voluntary intoxication. This
position of the law is well demonstrated in the case of A.G. of NORTHERN
Ireland V. Gallagher (1963) A.C. 349. Where the accused after expressing his
mission to kill his wife, went and consumed a bottle of whisky to get dutch
courage. Lord Denning, the master of the rolls clearly stated it that:

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 “…wickedness of his mind before he got drunk is enough to condemn him,
coupled with the act he intended to do and did so”.

VOLUNTARY INTOXICATION UNDER THE PENAL CODE

Section 44 of the Penal Code provides that:

“A person who does an act in a state of intoxication is presumed to have the

same knowledge as he would have had if he had not been intoxicated”.

However, this stated provision had caused a lot of argument among the Jurists as to
whether or not, voluntary intoxication can be an exonerating factor to any criminal
liability; in line with the provisions of the Penal Code. The view that gave birth for
this was that, interpretation of section 44 clearly placed intoxicated man on the
same capacity of knowing the circumstances connected with his act as a sober
man. It vividly presumed a person that drunk to have the same knowledge as if he
was sober without the slightest suggestion that he proves to the contrary.

The case of Sudan Government V. Eidella Saheed Abubakar (1956)S.L.J.R. 42.

is a very apt illustrative in this respect, where the deceased was killed by a lover.
While the court rejecting the defendant’s defence of voluntary intoxication, the
court held and remarked that:

“The Penal Code requires it to be assumed that a man voluntary drunk had
the same knowledge as he would have had if he had been sober and
intention in many cases is an inference from knowlwdge…”

Accordingly, his Lordship Fatayi Williams JSC (as he then was), also emphasized
on the section 44 of the Penal Code, that, Penal Code does not contain a similar
provision with section 29(4) of the Criminal Code, which regards voluntary
intoxication as an important factor in negating intent.

The said section 29(4) goes thus:

“Intoxication shall be taken into account for the purpose of determining

whether the person charged had formed any intention, specific or
otherwise, in the absence of which he would not be guilty of the offence”.

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However, after embarking on the voyage of argument, it had been rightly and
generally settled that, the voluntary intoxication can serve as an exonerating factor
for all crimes in the Penal Code that have “intent” not knowledge as the requisite
mental element, this is because, the provision of section 44 only refers to the
offence that has “knowledge” as a mental element to be proved. It must however
not to forget that, the mental element to be proved will be listed in the statute that
defines the crime, (intentionally, knowingly, willfully, etc).

In respect of this, where the accused person drunk voluntarily and commits an
offence that has “knowledge” as a mental element to be proved, then the defence of
voluntary intoxication cannot be an exonerating factor. Conversely, where the
offence requires the proof of “intent”, then defence of voluntary intoxication would
come and play a role. In the case of Musa Kwai V. State; where the accused had
drunk, and as a result of that quarreled with his wife who he later struck to death,
the court convicted him of murder as charged, because, the two mental elements
mentioned or required for the offence of murder under the Penal Code are either
“intention or knowledge”.

Lastly, it is worthy to note that, the provision of the Penal Code especially section
52 does not recognise voluntary intoxication as a defence to a criminal liability;
though, it can serve as a mitigating factor but not always.

CONCLUSION

By going through the above mentioned provisions of both Penal Code and
Criminal Code, and the ruling of the decided cases, one may be able to
conclusively understand that, an “intoxication” as a defence to criminal liability
my turn out to be complete, incomplete or even not to be a defence at all. This
however, has to do with the determination of subjective mental element.

Note that, the issue of the identification of the specific intent plays a vital role to
the prosecution to make the accused liable, irrespective of whether the intoxication
happens to be voluntary or involuntary one.

Generally in that, voluntary intoxication does not serve as a defence, though there
are few exceptions as pointed out above. Conversely, involuntary intoxication

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happens to be an absolute defence to a criminal liability even though some few
exceptions were drawn in this paper.

Lastly, it is undisputable fact to state that, from the foregoing, intoxication as a

defence mechanism to a criminal liability is not absolute.

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REFERENCES:

1- Law commission (1993) consultation paper no. 127 intoxication and

criminal liability
2- Majewski approach: intoxication and mental element
3- www.jstor:org
4- www.mondaq.com-India
5- Criminal law: Okonkwo and Naish
6- Law of Crimes: Kharisu Sufiyan Chukkol
7- Criminal Law in Perspective: Suleiman Ikpechukwu Oji
8- www.justicia .come/criminal/defence/intoxication
9- www.acadamia.edu26025654/intoxication-and criminal liability in Nigeria

A jurisprudential Analyses

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