LEGAL PRINCIPLE: CRIMINAL LAW — Attempt — Conviction for Attempt Where Full Offence Not Proved — Propriety of
PRINCIPLE STATEMENT
An accused cannot be convicted of an attempt to commit an offence where the prosecution has failed to prove that the intended act would have constituted an offence; such a conviction would be impractical and an affront to common sense.
RATIO DECIDENDI (SOURCE)
Per Ejiwunmi, JSC, in Jegede v. State (2001) NLC-1332000(SC) at p. 20; Paras C–D, adopting Fatai-Williams, JSC in Adeosun v. State (1975) 9-11 SC 1 at 15-16.
"Returning to the question whether an accused person can be convicted of an attempt to commit an offence which the prosecution has failed to prove to be an offence, the answer is that no such conviction can be sustained. Any other conclusion to my mind, would not only be impractical, it would also constitute an affront to common sense."
EXPLANATION / SCOPE
If the prosecution fails to prove that the intended act would constitute an offence, there can be no conviction for attempt. The attempt is parasitic on the substantive offence. If the substantive act would not be criminal, attempting it cannot be criminal. The principle prevents absurd results. The prosecution must prove the elements of the substantive offence to establish attempt. The court cannot convict for attempt based on speculation about what might have happened. The rule applies where the intended act is not inherently criminal. The prosecution must show that the completed act would have been an offence. The principle is fundamental to attempt liability.