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Home / Law / PROVOCATION AS A DEFENSE TO CRIMINAL
LIABILITY

PROVOCATION AS A
DEFENSE TO CRIMINAL
LIABILITY
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RESEARCH INFORMATION

✎: PROVOCATION AS A DEFENSE TO CRIMINAL

LIABILITY

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This study, “PROVOCATION AS A DEFENSE TO

CRIMINAL LIABILITY” contains concise information
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project work. The project study is well-researched
for academic purposes and are usually provided in
complete chapters with adequate References.

Keywords: PROVOCATION AS A DEFENSE

TO CRIMINAL LIABILITY

RESEARCH BODY

ABSTRACT

Provocation on its own it not a total defense as to

make the accused discharged of his guilt. It
reduces murder to manslaughter. This essay
considers the adequacy of this defense by
examining it under the penal laws of Nigeria and
different centers.

The general requirement is that of the deceased

must have been caused by accused upon
provocation induced by the deceased himself and
this must be offered before the accused had time
for his passion to cool down. The injury inflicted
must also be proportional and must be one as
would have caused a reasonable man to resort to
the same consequence

The adequate of this defense, in the light of the

scope of this essay is purely a psychological
question. The test of provocation is inadequate. It is
plainly illogical not to recognize the fact that
different people react differently to stimuli and the
law, by its hording expects a man dethroned in his
reasoning faculty to inflict a reasonably proportional
injury which only a reasonable man in his senses
could do.

The aim and objective of this work is to access the

meaning of the term provocation as provided for
under the penal and criminal codes and other
relevant statutes, case law and by various author,
its nature, element and the condition under which
the defense can avail a person from criminal liability.

TABLE OF CONTENTS

TABLE OF CASES

TABLE OF STATUTES

LIST OF ABBREVIATION

TABLE OF CONTENTS

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

1.1.0: BACKGROUND TO THE STUDY

1.2.0: OBJECTIVE OF STUDY

1.3.0: FOCUS OF STUDY

1.4.0: SCOPE OF STUDY

1.5.0: METHODOLOGY

1.6.0: LITERATURE REVIEW

1.7.0: DEFINITION OF TERMS

1.8.0: CONCLUSTION

CHAPTER TWO

DEFENCES TO CRIMINAL LIABILITY

2.0.0: INTRODUCTION

2.1.0: DEFINITION OF CRIME

2.2.0: GENERAL PRINCIPLES OF CRIMINAL

LIABILITY

2.3:1: ACTUS REUS

2.3:2: MENS REA

2.4.0: CONCLUSION

CHAPTER THREE

NATURE OF PROVOCATION

3.0.0: INTRODUCTION

3.1.0: DEFINITION OF PROVOCATION

3.2.0: DEFENCE TO PROVOCATION

3.2:1: DEFENCE TO PROVOCATION UNDER THE

PENAL CODE

3.2:2: DEFENCE TO PROVOCATION UNDER THE

CRIMINAL CODE

3.3.0: CONCLUSION

CHAPTER FOUR

THE BURDEN OF PROOF TO PROVOCATION

4.0.0: INTRODUCTION

4.I.0: BURDEN OF PROOF IN CRIMINAL LIBILITY

4.2.0: EXCEPTION OR EXEMPTION TO THE

BURDEN OF PROOF IN

CRIMINAL LIBILITY

4.3.0: THE BURDEN OF PROOVING THE DEFENCE

OF

PROVOCATION

4.4.0: EFFECT OF A SUCCESSFUL PLEA OF

PROVOCATION

4.5:0: CONCLUSION

CHAPTER FIVE

GENERAL CONCLUSION

5.0.0: CONCLUSION

5.1.0: RECOMMENDATION

TABLE OF CASES

NIGERIA

• AKANNI OGUNDIMU vs. STATE (1979) 13

C.A.12

• AIWORO vs. STATE(1987) 2 NWLR 526

• AIGUREGHI vs. THE STATE (2004) 1 (Pt. i) 65

at 86 ALA CHUKWU vs. THE STATE (1990) 12
SCNJ P.71

• BABUGA vs. STATE (1996) 7 NWLR (PT 460)

279

• CHANKALL vs. R (1955) A.C. P.206

• DAN-SHALLAH vs. STATE (2007) 12 MJSC 1

• EDEMINE vs. THE STATE (1996) 3 NWLR (Pt.

438) 530 at 539

• EJALOFU vs. QUEEN (1962) 1 ALL NLR P.22

• EKEPEYYOUNG vs. STATE (1993) 2 NWLR pt.

229 at 513

• GARUBA vs. THE STATE (2000) FWLR (Pt.24)

1405 at 1450

• JOHNSON vs. C.O.P (1960) WWLR 118

• LADO vs. STATE (1999) NWLR (PT 619)369 at

379-380.

• KWAKU MENSAH vs. R (1946) A.C 83 at 91

• MATHEW ONAKOYA vs. R (1957), 4 FSC 150

• NGA’ABA vs. QUEEN (1969) NNCN 97

• NIGERIAN AIR FORCE vs. OBIOSA (2003) 1 SC

(Pt. ii) 145 at 146

• NWEDE vs. STATE (1985) 3 NWLR (Pt. 13)

P.144

• OBIAKOR vs. STATE (2002) 6 SCJN P.193

at202

• OLUDAMILOLA vs. STATE (2010) 3 MJSC

(Pt.11) 108 at 120

• ONIYA vs. STATE (2006) 2 WNLR (PT 991) 271

• ONUBOGU vs. STATE (1974) 9 SC

• OKEKE vs. STATE (2003) 2 SC 63 at 73

• ONYEKWE vs. STATE (1988), 1 NWLR 565

• R vs. ADEKANMI (1954) 17 NLR 99 R vs.

ADELODUN (1959) NWLR 144

• R v. AFONJA (1955), 15 W.A.C.A. 26

• R vs. BASSEY (1963) 1 All NLR 280

• R vs. BASIL RANGER, LAWRENCE (1933) II NLR

6; (1933) AC

699(P.C.)

• R vs. EBOK (1950) 19 NLR 84

• R vs. GREEN (1955) 15 WACA 73

• R vs. OBIASE (1938) 4 W.A.C.A. P.16

• R vs. ONUOHA (1938) 3 W.A.C.A. P. 88

• SHANDE vs. STATE (2005) 22 NWLR (PT 11)

756

• STEPHEN EMOGA vs. STATE (1997) 7

SCNJ.518

• SUNDAY OMENIMU vs. STATE (1965) NMLR

365

• URAKA vs. STATE (1976) 6 SC 195

• UWAGBE vs. STATE (2008) MJSC (1) P. 191-

192

TABLE OF STATUES

NIGERIA

Criminal Code Act Cap „C 38‟ LFN. 2004

Children and Young Person‟s Act 1933

Criminal Damage act 1971

Constitution of federal republic of Nigeria 1999

Evidence Act Cap 62, LFN, 1958

Evidence Act Cap E14 LFN 2001

Penal Code Cap P3 LFN 2004

Road traffic Act 1958

LIST OF ABBREVIATIONS

AC – Appeal Cases

ALL ER – All England Report

C.C. – Criminal Code

C. J – Chief Justice

E A – Evidence Act

E D – Edition

FWLR – Federation weekly Law Report

L F N – Laws Federation of Nigeria

MSJC – Monthly Judgment of Supreme Court

NWLR – Nigerian Weekly Law Report

P.C – Penal Code

Q B D. – Queens Bench Division

SEC. – Section

S C – Supreme Court Cases

SCNJ – Supreme Court Cases of Nigeria Judgment

WRNLR – Western Region Nigeria Law Report

CHAPTER ONE GENERAL INTRODUCTION 1.0.0:

INTRODUCTION

It is a grievous offence and a serious crime under

the common law for a person to cause the death of
another person and no defense will avail such
person. However, it soon developed that there is a
rebuttable presumption that practically speaking
every common law crime (offense) requires
adequate proof of guilty soul.

Generally, the presumption of the law is that a man

intends the natural consequences of his act.[1] The
canal principle of criminal law of intention as it is in
the legal maxim “actus non fact reum nisi men sit
rea” which means an act does not make a person
legally guilty unless the mind is legally blame
worthy.[2]

The law says where a person kills another in

circumstances which but for provision of the
section, it would give rise to murder. There are
certain unlawful killing which does not amount to
murder section 317[3] provides that any unlawful
killing which does not amount to murder is
manslaughter. Manslaughter may be voluntary or
involuntary; involuntary manslaughter covers cases
in which there is no intention to kill or cause
grievous harm. Voluntary manslaughter on the other
hand occurs when a person intentionally kills
another but the offence is reduced from murder to
manslaughter because of provocation.

Thus the provision of section 318 4of the Criminal

Code is to effect that a person is guilty of
manslaughter only if he unlawfully kills another in
circumstances which would otherwise have
constituted, Murder, so far it is done in the heat of
passion caused by sudden provocation and before
there is time for his passion to cool. However,
before the defense of provocation can avail a
person, the test to be applied is to see what effect
the act or series of acts of the decreased would
have on a reasonable man, so that an unusually
exactable or pugnacious person will not be able to
rely on it as a defense to charge unless the
provocation was such as to have led an ordinary
person to act in the way the accused did.

It must be observed that provocation, where it is a

defense, does not negate Mens rea. It is allowed as
a defense because, even though the accused has
committed the actus reus of an offense with the
requisite means rea, the law considers that at the
moment of the commission of the physical act
resulting in the actus reus, the accused by reason
of passion arising from the act of provocation was
not master of his mind.

1.1.0: Background of the study

It is an establish fact under the law that any act of

killing which is unlawful is a criminal act. Such acts
under the specific offence are referred to as
„‟unlawful homicide which includes murder,
manslaughter, suicide, infanticide.

Also any intention to kill or cause grievous harm by

a person to another and which eventually results
into death is an unlawful killing which is usually
termed

„ murder‟. However, there are certain killings which

do not amount to murder section 317 of the criminal
code provide that an unlawful killing which does not
amount to murder is manslaughter.

Manslaughter may be voluntary or involuntary;

involuntary manslaughter covers cases in which
there is no intention to kill or cause grievous harm.
Voluntary manslaughter on the other hand occurs
when a person intentionally kills another but the
offence is reduced from murder to manslaughter
because of provocation. Thus the provocation of
section 318 of the criminal code is to the effect that
a person is guilty of manslaughter only, if he
unlawfully kills another in circumstances which
would otherwise have constituted murder so far it is
done in the heat of passion caused by sudden
provocation and before there is time for his passion
to cool. However before the defense of provocation
can avail a person the test to be applied is to see
what effect the act or series of acts of the
deceased would have on a reasonable man, so that
an unusually excitable or pugnacious person will be
able to rely on it as a defense to a charge unless the
provocation was such as to have led an ordinary
person to act in the way the accused did.

1.2.0: Objective of the Study

The aim and objective of this work is to examine the

meaning of the term

„provocation‟ its plea as a defense to criminal

charge in Nigeria and the conditions under which it
can avail a person by reducing his capability from
murder to manslaughter or culpable homicide
punishable with death to that not punishable with
death. In view of this, this work shall attempt to
achieve the following goals:

Ø To examine the defense as well as its elements

Ø To examine the defense under the Nigeria

Criminal justice System; what constitute the
defense and its grounds for reducing murder to
manslaughter.

Ø To examine the burden of proof, the effect,

adequacy and limitation of the defense and to
suggest or make recommendation on the defense if
there is any.

1.3.0: Focus of Study

The state at which a person response to stress

situation varies from one individual to another. Men
are highly vulnerable to stress while some are
slightly resistant these are proved by clinical
observation and experiment. There seems to be
different factors combined to produce the
difference of response in that situation

(provocation) from another person all are to be

taken into consideration. The essay is thus focused
on the defense of provocation with reference to the
essential element of the plea, the effect of the
successful plea of the defense.

1.4.0: Scope of the study

This essay is limited in scope to the provision of the

two statutes governing the Nigeria Criminal Justice
System. How the defense of Provocation mitigate
murder to manslaughter, and upon who lays the
burden of proving provocation.

1.5.0: Methodology

The approach of research taken into consideration

is based on explanatory method, thus textbook,
journals, articles by law writer, publications, judicial
pronouncement and opinion will be looked into.
Decided cases will also be employed in this essay to
be able to understand more on the principles of law
relating to the defense of provocation in criminal
liability. The Criminal Code and the Penal Code will
also be of immense use to this work.

1.6.0: Literature Review

The bulk of materials used in writing this work

consist of textbook, write ups etc. by various
scholars both foreign and Nigerian. The writer also
makes captious use of case laws (both Nigerians
and non-Nigerians) the reason for this is to appraise
the disposition of the court towards the defense.
The provisions of the two codes (Penal Code and
Criminal Code) are also highlighted and espoused.
Those provisions represent the main laws govern
criminal liability in Nigeria. Provocation was defined
by Delvin J in R V Duffy[4] as an act done by the
dead man to the accused which could cause in any
reasonable man temporary loss of self-control.

Smith and Hogan[5] in their book examined all

aspects of criminal law and criminal responsibility,
the generally principles of criminal liability and in
particular specific defense. All these were done
with illustration from decided cases.

Okonkwo and Naish[6] is a Nigeria criminal law

textbook, it explicated the defense of self-defense,
the effect of a successful plea of provocation.

L.B Curzon8 in his book examined all aspects of

criminal law and criminal responsibility and even
defenses.

1.7.0: Definition of term

Criminal liability

It is define by section 1 Criminal Code act as liability

to punishment as for an offence. It is the liability
incurred as a result of an act or omission committed
by an offender or an accused person.

Crime

An act that the law makes punishable; the breach of

a legal duty treated as the subject matter of a
criminal proceeding.

Actus reus

This is the physical components of a crime and that

generally must be coupled with means rea to
establish criminal liability; a forbidden act.

Mens rea

The state of mind that the prosecution, to secure a

conviction, must prove that a defendant had when
committing a crime; criminal intent or recklessness.

8 Criminal Law‟ (8th ,ed Pitman Publishing, London

1997) P.23 )

Burden of proof

This is a party‟s duty to prove a disputed assertion

or charge.

Provocation

The act of inciting another person to do something,

especially to commit crime.

Act.

Act is something done or performed, especially

voluntary; a deed.

Omission

Failure to do something which law directs to be

done and was not done i.e.

negligent, carelessness mistake etc.


Intention