Provocation is predicated on known requirements for it avail as a defence. Expantiate.

INTRODUCTION

The defence of provocation in a murder charge has a chequered history. It’s developed in English court
in the 16th and 17th centuries. During this period, death penalty was a mandatory punishment for
anybody convicted of murder. The defence of provocation was born out of the consideration that it is
virtuous for a man of honour to respond with controlled violence to some forms of offensive behaviour.

Thus, the defence of provocation the rationale of which is based on the law’s compassion to human
infirmity is also recognised in Nigeria. Hence, the Defence of provocation can be described as a
concession to human frailty, introduced by the common law to mitigate the strictness of the single
penalty of death for a convict in a murder charge.

THE LEGAL REGIME OF PROVOCATION AS A DEFENCE IN NIGERIA.

The definition of provocation can be found in section 283 of the criminal code which is more
encompassing or better still not defined in the Penal code which is applicable in the Northern parts of
the country. The section provides

“The term “provocation”, used with reference to an offence of which an assault is an element, includes,
except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an
ordinary person, or in the presence of an ordinary person to another person who is under his immediate
care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of
master or servant, to deprive him of the power of self-control, and to induce him to assault the person
by whom the act or insult is done or offered.”

The section defines the term “provocation” even though the definition is not an exhaustive one, but it
gives instance of what can amount to provocation. The said section has widened its scope by the use of
the word “includes”. It is submitted that “includes” in section 283 of the Criminal Code is meant to
provide a clear definition of provocation, for it is hard to imagine what other meaning provocation could
have except as defined in this section.

Furthermore, there are litany of decided authorities on the meaning of provocation. The Supreme court
in the case of OWHORUKE V. COP (2015) LPELR-24820 (SC), where Rhodes-Vivour, JSC,(As he then was)
defined provocation has follows;

“Section 283 of the Criminal Code defines provocation to include not only wrongful acts but also spoken
words. There is thus an objective and subjective element in provocation. It must be kept in mind that
the provocative act should be capable of depriving a reasonable man and did deprive the
accused/Appellant of self control to make him for a moment not master of his mind. There is no set
standard of retaliation expected from a reasonable man, it all depends on the accused/Appellant’s
station in life. A reasonable man is a reasonable man of the accused persons standing in life and to a
large extent his cultural background”

Flowing from the definitions above, it could be gleaned that provocation is an act or series of acts
done by the deceased to the accused to make the latter for the moment not to be master of his own
mind. Therefore, provocation as a defence in criminal is a single defence against unlike other defences
like Mistake, insanity and intoxication. Provocation is this only available for the offence of Murder.

Under the Penal Code by virtue of section 222 (1) thereof it recognises provocation as defence for
culpable homicide punishable with death but can mitigate the punishment to culpable homicide not
punishable with death. Likewise in the criminal code applicable in the south, by virtue of section 318
thereof, it provides that a person in the heat of passion caused by provocation and before there is time
for his passion to cool, is guilty of manslaughter only.

Therefore, for the defense of provocation to avail as a defence, the defendant must satisfy the following
requirements.

REQUIREMENTS OF PROVOCATION

No matter of provocation can ever justify a killing. The most it can do as earlier mentioned is to reduce
murder into manslaughter. Therefore before a plea of provocation will succeed certain conditions have
to be satisfied this requirements has been highlighted by the supreme court In the case of GALADIMA
v. THE STATE: (2017) LPELR-SC.72/2013 where SANUSI, J.S.C. (as he then was) held as follows;

“(a) That the act he relied on is actually Provocative,

(b) That the provocative act deprived him of self control,

(c) The provocative act came from the deceased.

(d) The sudden fight between the accused and the deceased was instantaneous and continuous with no
time to cool down; and

(e)The force used by the accused in repelling the provocation is not disproportional in the
circumstance.”

See also OWHORUKE V. COP (2015) LPELR-24820 (SC). OCHI v. STATE : (2018) LPELR-45064(CA)
;OWOLABI v. STATE (2018) LPELR-46031(CA)

This requirements will be taken seriatim

THE ACT HE RELIED ON IS PROVOCATIVE

The nature of provocation could be by words or conduct. The old common law rule was that words
alone could not be sufficient provocation to reduce murder to manslaughter. This was modified in
Holemes v D.P.P (1946) A.C 588 where it was said that words alone could not amount to provocation
“save in circumstances of a most extreme and exceptional character” this has been approved by our
courts for the purpose section 318 of the criminal code and section 221(1) of the penal code.

As a rule the words or act of deceased must be capable of provoking a reasonable man to deprive him
of self control. A reasonable man in this context has been held to mean a reasonable man in the accused
person situation in life and standard of civilisation. In the case of BAKARI v. THE STATE (2018) LPELR-
CA/J/304C/2017, the appellant was charged with the offence of culpable homicide punishable with
death, the appellant pleaded not guilty and in his defence pleaded provocation. In his defence of
provocation he contended that he was accused of stealing a phone that the accusation got him angry
and went to his house to pick a knife and thereafter went after the deceased kicked him and stabbed
him. The trial court rejected same and convicted the appellant. On appeal the court of appeal per
MSHELIA, J.C.A. affirmed the conviction as follows;

“ I agree with the learned trial Judge’s finding that from these pieces of evidence the provocation was
not sudden. Appellant had all the time for his passion to cool down. The evidence disclosed that he had
time to go to his house and pick the knife and went to the house of the deceased looking for him. PW4
also tried to intervene by cooling appellant???s temper but he refused. Although the accusation of
stealing a phone could amount to provocation, the stabbing of the deceased did not follow
instantaneously. Appellant in my view did not stab the deceased in the heat of passion. The provocation
was also not grave enough to call for this kind of retaliation, for using a knife to stab a person on the
neck is very disproportionate to the provocation given. See Uwagboe v State (2008) 12 NWLR (Pt. 1102)
621, (2008) LPELR ??? 3444 SC, Chukwu v State (1992) 1 NWLR (Pt. 217) 255.”

THAT THE PROVOCATIVE ACT DEPRIVED HIM OF SELF CCONTROL

The provocative act relied upon by the defendant must have been capable to deprive the him of self
control. The provocation must have been so grave and sudden in other for it to be capable of depriving
the Defendant of self control. This requirements is provided by section 222(1) of the penal code as
follows:

“(1) Culpable homicide is not punishable with death if the offender whilst deprived of the power of self
control by grave and sudden provocation causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.”

In NDUBUISI VS. STATE (2018) LPELR-44908(SC) Per AUGIE, J.S.C had the course of commenting on the
the issue thus;

"Finally, and more importantly, for the defence of provocation to avail the Appellant, there must be
something said or done by the deceased persons in his presence, which caused the Appellant to
'Suddenly and temporarily' lose his passion and self-control. See R. vs. Duffy (1949) 1 AER 932, where
Devlin, J., observed that: Provocation is some act, or series of acts, done by the dead man to the
Accused, which would cause in any reasonable person, and actually cause in the Accused, a sudden and
temporary loss of self-control, rendering the Accused so subject to passion as to make him or her for the
moment not master of his mind. This definition of "provocation" has been adopted by this Court in
numerous cases - Akalezi vs. State (1993) 2 NWLR (Pt. 273) 1 SC, George vs. State (1993) 6 NWLR (Pt.
297) 41 SC, Uluebeka vs. State (2000) 7 NWLR (Pt. 665) 404 SC, and it is clear that such killing(s) is
triggered by rage or anger, etc., on the part to the Accused to a person that offered the provocation. It is
a direct confrontation, there is no third party inciting the Accused to kill the deceased- See Kaza vs. State
(2008) LPELR-1683(SC), where Tobi. JSC, said Provocation is an action or conduct, which arises suddenly
in the heat of anger. Such action or conduct is precipitated by resentment, rage or fury on the part of
the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage
or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind
which results in the commission of the offence.”

THE SUDDEN FIGHT BETWEEN THE ACCUSED AND THE DECEASED WAS INSTANTANEOUS AND
CONTINUOUS WITH NO TIME TO COOL DOWN;
If between the provocative act and the killing enough time has elapsed for passion to cool, a plea of
provocation will fail.

The earlier case of BAKARI v. THE STATE (Supra) is also instructive in this case. The court in the case
further held assuming the accusation of stealing was provocative the fact the PW4 tried to cool the
accused/appellant but the appellant removed a knife from his trouser and refused listen. The court
further held as

“The evidence disclosed that he had time to go to his house and pick the knife and went to the house of
the deceased looking for him. PW4 also tried to intervene by cooling appellants temper but he refused.
Although the accusation of stealing a phone could amount to provocation, the stabbing of the deceased
did not follow instantaneously. Appellant in my view did not stab the deceased in the heat of passion”

Also in the case of UKPONG v. THE STATE (2019) LPELR-SC.646/2016, in the case, the Appellant was
provoked on 12th December, 2006 when the deceased, as sanitation of his community, indicated ,that
the appellant's coconut together with other trees be felled for the purpose of executing electrification
project. The appellant fatally attacked the deceased the following day after provocation had ceased. The
court held that the defence of provocation cannot avail him the court further held that;

“ It is trite that the defence of provocation in a Murder case can only avail the accused to reduce the
offence from murder to manslaughter where death occurred in the heat of passion and not after anger
had cooled down. See Akalezi v. State (1993) 2 NWLR (pt. 273) 1 qtr 14, Uraku v. State (1976) 6 SC. 128:
R v. Igbe (1961) 1 All NLR 476; Musa v. State (2009) 15 NWLR (pt. 1165) 465; Ada v. State (2008) 73
NWLR (Pt.1103) 149.”

THE FORCE USED BY THE ACCUSED IN REPELLING THE PROVOCATION IS NOT DISPROPORTIONAL IN
THE CIRCUMSTANCE.

The mode of resentment must bear a reasonable relation to the provocation. Thus, for a plea of
provocation to succeed, the English Courts adopted a rule that the retaliation for the provocation
offered should be proportionate The only statutory authority for this rule in Nigerian criminal law can be
found in section 284 of the Criminal Code which states that:

“Provided that the force used is not disproportionate to the provocation” This proportionality in section
284 of the Criminal Code is required for cases of provocation in which an assault is an element. Here it is
worth mentioning that neither section 222(1) of the Penal Code nor section 318 of the Criminal Code
has incorporated the proportionality rule for homicide cases.

The nature of the weapon or force used and mode of resentment bearing a reasonable relationship to
provocation received must also be considered. The danger is that the courts have tended to place undue
emphasis on the nature of that act itself. Consequently, where “B” who is provoked by “A” kills him by
hitting one blow on the head, the courts, may hold that this is manslaughter. But where “B” after the
blow struck many other blows and then hacked “A” to pieces with a knife, the court, may consider this
to be murder because the mode of resentment was disproportionate to the provocation without
considering whether “A” died of the first blow only or the other blows and the mutilation were done in a
single minute. In fact, one may question the relevance of the subsequent retaliatory acts after initial
fatal blow.
CONCLUSION

The defence of provocation in Nigeria must be considered under the Nigerian Codes. Although the
defence of provocation under the Nigerian codes is substantially the same as the Common Law doctrine
of provocation. Nigerian Courts should apply the defence from the stand point of the Criminal and Penal
Codes. We should desist from assuming that the law of provocation in Nigeria is a restatement of the
English Common Law doctrine. This does not mean that English decisions would no longer be resorted to
in interpreting the Codes

Therfore , the plea of provocation does not exculpate the accused, but is only a mitigating factor when
it comes to the sentencing.