THE DEFENCE OF PROVOCATION: A MITIGATING

FACTOR IN HOMICIDE CASES IN NIGERIA

A RESEARCH PROJECT

WRITTEN
BY

EYOH, EDIDIONG PETER

10/LA/1086

SUBMITTED TO

FACULTY OF LAW
UNIVERSITY OF UYO, UYO.

JULY, 2015
 THE DEFENCE OF PROVOCATION: A MITIGATING
FACTOR IN HOMICIDE CASES IN NIGERIA

A RESEARCH PROJECT

WRITTEN
BY

EYOH, EDIDIONG PETER

10/LA/1086

SUBMITTED TO

FACULTY OF LAW
UNIVERSITY OF UYO, UYO.

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE

AWARD OF BACHELOR OF LAWS (LL.B HONS) DEGREE

JULY, 2015
ABSTRACT

The doctrine of provocation and crime of homicide has always

represented an anomaly in English Law. The defence frequently raised
in criminal trails and by virtue of its prominence in the Nigerian
Criminal Justice, Account is therefore taken meticulously to give a vivid
exposition of its nature. Whereas in homicide, provocation affects a
change in the offence of itself from under which the penalty is fixed to
the lesser offence of manslaughter. This work shall comparatively
examine the defence of provocation with other advanced jurisdictions
such as Canada, American etc in order to show its applicability in
Nigeria. The aim and objective of this work is to analyse the legal
framework of provocation as provided for under the penal and criminal
codes in Nigeria and other relevant statute, its nature, element, effect
and adequacy, conditions under which the defence can avail a person
and possible recommendations on the defence.
TABLE OF CONTENTS
Pages
Title page
Declaration
Certification
Acknowledgement
Table of Contents
Table of Cases
Table of Statutes
List of Abbreviation
Abstract

CHAPTER ONE: INTRODUCTION

1.1 Background of the Study
1.2 Statement of Problem
1.3 Aim and Objectives of Study
1.4 Significance
1 .5 Research Question
1.6 Research methodology
1.7 Scope of Study
1.8 Literature Review
1.9 Definition of Terms
CHAPTER TWO: MEANING AND NATURE OF PROVOCATION
2.1 Meaning and Nature of Provocation
2.2 Statutes Creating Provocation
2.3 Comparism between the Defence of Provocation under the Common Law and
Nigerian Law
2.4 Provocation in Other Jurisdictions
2.4.1 Canada
2.4.2 America
2.4.3 Queensland
2.4.4 Australia
2.4.5 England
CHAPTER THREE: AN OVERVIEW OF THE ELEMENTS OF
PROVOCATION
3.1 Elements of Provocation
3.1.1 Heat of Passion
3.1.2 Loss of Self control
3.1.3 Wrongful Act and Insult
3.1.4 Reasonable Man’s Test
3.1.5 Mode of Resentment
3.2 The Third Party and the Concept of Provocation
3.3 The Killing must involve Assau1t
CHAPTER FOUR: THE DEFENCE OF PROVOCATION AND ITS
APPLICABILITY IN NIGERIA
4.1 The Scope of Provocation
4.2 The Issue of Burden of Proof
4.3 Defence in Provocation Cases
4.3.1 Mistake
4.3.2 Self-Defence
4.3.3 Intoxication
4.3.4 Accident
4.3.5 Insanity
4.3.6 Automatism
4.4 Applicability in Nigeria
4.5 The Effect of Provocation as a successful Plea.
CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS
5.1 Conclusions
5.2 Recommendations Bibliography
 CHAPTER ONE

INTRODUCTION
1.1 Background of Study

In Nigeria any act of killing which is unlawful is a criminal act. Such acts

under certain offences are referred to as unlawful homicide, which includes

suicide, infanticide, murder, manslaughter. Also, any intention to kill or cause

grievous harm by a person to another and which eventually result in death, is an

unlawful killing which is usually termed

“murder”.

The onus of proving the guilt of an accused is on the person who allege for

the commission of the offence .1 An accused person on the other hand is entitled to

defend himself of the charge leveled against him in which provocation is one of

such defences. The defence of provocation is raised by an accused mostly in

homicide cases in relation to murder and manslaughter. However, certain killings

do not always amount to murder. Section 317 of the Criminal Code Act 2 grievous

1 Section 36(5) CFRN 1999, this provision also state that provided that nothing in this section shall invalidate any
law by reason only that the law imposes upon any such person the burden of proving particular facts.
2 CAP C.38 Laws of the Federation of Nigeria, 2004.
harm, while voluntary manslaughter occurs when a person intentionally kills

another but the offence is reduced from murder to manslaughter due to

provocation.

The defence of provocation may also arise where a person who does not

intend to kill, inflict a bodily harm due to sudden passion involving loss of self

control by reason of provocation. The intricate nature of the defence has brought

about so much controversy. It is controversial because the court is often eager to

find what amount to provocation from the accused person.

Accordingly, provocation under Section 318 of the Criminal Code Act3 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. The Supreme Court in the case of Obaji v State4 held

that section 318 of the Criminal Code Act5 should be read alongside with section

283 of the Criminal Code Act6. Thus, before the defence 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 person

3 CAP C. 38 Laws of the Federation of Nigeria, 2004
4 (1965) I All NLR 269
5 Ibid
6 CAP C. 38 Laws of the Federation of Nigeria, 2004
will not be able to rely on it as a defence to the charge unless the provocation was

such as to have led an ordinary person to act in the way the accused did.

1.2 Statement of Problem

Basically, the controversial nature of the defence appears to enable

defendants to receive more lenient treatment because they allowed themselves to

be provoked. Therefore, it is the assessment of their culpability that determines

whether a person should be held responsible for their actions as this is carried out

by reference to a reasonable man’s test, that is a universal standard to determine

whether an ordinary person would have been so provoked , if found in similar

circumstances as the defendant. If the majority view of social behavior would be

that when provoked, it would be acceptable to respond verbally and if the

provocation persists, then to walk away; that will set the threshold for the defence.

1.3 Research Question

The defence of provocation elevates the emotion of anger over other

emotions such as, fear, despair, compassion and empathy, it is questionable

whether, in moral terms, a killing is necessarily less culpable when performed in

anger as a result of provocation. Indeed, there is an argument that it is morally

unsustainable for anger and sudden loss of self control to found a form of defence

to murder.
 Thus, this work will raise several issues for determination including: to

1. What extent does heat of passion lasts,

2. Must the act be done on the person who cause the provocation;

3. Can a wrongful act or insult provoke a person?; this research will also

answer the question base on the circumstances under which the pleas of

provocation would be successful as well as the fundamental element of the

defence of provocation.

1.4 Significance of the Study

The law of provocation has been the subject of much development both

locally and in other common law jurisdictions. Although, the paper draws

largely upon the doctrine of provocation as it operates in Nigeria. It’s also

looks into the exact nature of provocation and those factors which constitute its

defence as well as the relevance of the characteristics of the offer and the

proportionality requirement in the objective test of the defence.

It also considers whether certain triggering conditions must be before an

offenders’ characteristics may be considered for the purpose of assessing the sting

of the provocative conduct or insult and the proper approach of the court faced
with such alleged characteristics. It elucidates grounds which murder can be

mitigated to manslaughter and also examines who bears the burden of proof for

provocation.

It is hoped that the analysis offered has relevance to all systems where

similar defence are recognized and can make a useful contribution to the

continuing moral debate that the partial defences to murder generate as well as to

be able to appraise the disposition of the court towards the defence.

1.5 Methodology of the Study

This research is both analytical and argumentative in nature. It will adopt

various qualitative research methods in order to provide the required information.

Research materials such as textbooks, articles, internet, magazines, journals, and

judicial decision in Nigeria and other jurisdiction. Hence, this research is library

based.

1.6 Scope of the Study

The study covers the concept of provocation as a mitigating factor or as a

defence in homicide and its enforcement by the judiciary in Nigeria. The

researcher uses judicial authorities, statutory provisions, and opinion of text writers

(jurists). With a view to highlighting the concept of provocation in Nigeria.

However, reference is made to other legal system on a comparative basis

1.7 Objectives of the Study

In view of examining the term provocation this work shall attempt to

achieve the following goals:

(a) To ensure a thorough analysis of the legal framework for provocation in

Nigeria law.

(b) To examine the nature of the defence as well as its elements.

(c) To examine the burden of proof, the effect, adequacy and limitation of the

defence and to suggest or make recommendations on the defence if there is

any

(d) to examine why provocation laws are very difficult to enforce.

1.8 Literature Review

Most unlawful homicide which are not classified as murder are manslaughter.

There are two kinds of manslaughter, voluntary and involuntary. In which the

former has the presence of mens rea, but the mitigating circumstances only serve

as a partial defence.

The quest for a better and easier enforcement of homicide laws has drawn

the attention of writers to the subject at one time or the other. However, writers

have written on the doctrine of provocation and its nature. Writers also make use of
case laws (both Nigeria and non Nigerians), the reason for this is to appraise the

disposition of the court towards the defence. The provisions of the vital codes,

(penal code and criminal code) are also highlighted. Those provisions represent the

main laws governing criminal liability in Nigeria. Provocation was defined by

Delvin J. in R. v Duffy7 as an act done by the dead man to the accused which could

cause, in any reasonable man, and actually causes in the accused a sudden and

temporary loss of self-control tendering the accused so subjected to passion as to

make him or her for the moment not to be a master of his mind.

The homicide Act 1957 section 3 gives a partial

definition of this, where on a change of under there is
evidence on which the injury can find that the person
charged was provoked (whether by thing done or by
things said or by both together) to loose his self- control,
the question whether the provocation was enough to
make a reasonable man to do as he did, shall be left to be
determined by the jury. And in determining that question
by the jury shall take into account everything both done
and said according to the effect which in their opinion it
would have had on a reasonable man

Okonkwo and Naish in their book8 provide a comprehensive and

authoritative coverage of the concept. Smith and Hogan9 in their book examined all

aspects of criminal law and criminal liability and exact defence. And they agree

with Lord Delvin’s definition of provocation.

7 (1949) 1 All 932

8 Okonkwo and Naish Criminal Law in Nigeria. 2nd Ed. (Ibadan; Spectrum Books Limited, 2005), p. 240 —250.
9 Smith and Hogan Criminal law. 5th Ed. (United Kingdom, Continuum International, 1997), p.5.
 Going further into their writings, Smith and Hogan on provocation and the

mode of resentment submitted that the mode of resentment must bear a

reasonable relationship to the provision if the offence is to be reduced to

manslaughter.10

However, this position was on longer acceptable as Lord Diplock said it

would now be wrong to the jury “fist might be answered with fist, but now with a

deadly weapon”, because of fists were answered with a deadly weapon, such a

direction would take out of the jury’s hands a question which is exclusively for

them and on which their opinion is decisive. All these were done with illustration

from decided cases. L.B. Curzon,11 in his book examined all aspects of criminal

law and criminal responsibility and even defences. Granville Williams’212 define

crime to be legal wrong and also consider crime as a conduct which will include a

formal and solemn pronouncement of the moral condemnation of the community”.

Yahaya Abubakar13 survey the technical details of the defence of provocation and

relation to self defence, adultery, defence are presented with a masterly grasps of

the field of criminal law in Nigeria. He sees the plea of provocation to be based on

the loss of self control both actual and reasonable.

10 Smith and Hogan Criminal law. 10th Ed. (Lexis Nexus: London, 2002) p.11.

11 L. B. Cruzon Criminal law 8th Ed. (London, Pitman Publishing 1997).

12 Granville Williams. 2nd (London: Stevens and Sons Limited, London), p.11
13 Yahaya, A. Muhammed, Student Handbook on the Defence of Provocation in Nigerian Criminal Law. 1st Ed.

(Maiduguri, Ed-Linform Service, 2006), P. 36.

 Card, Gross and Jones14 tend to see provocation a little differently by writing

that it is not a defence to any other change other than murder and not even

attempted murder. They submit that in the defence of provocation, the provocative

words or conduct need not come from the person killed. According to them, if a

person accidentally killed someone other than the one who provoked him when

aiming at the latter, he is only guilty of manslaughter. In examining the reasonable

man’s test, they opine that it all comes down to answering two questions:

(i) would the reasonable man have lost his self control?

(ii) would a reasonable man have retaliated as the accused did?

Michael Jefferson15 examines provocation from the provision of section 3 of

the Homicide Act 1957. According to him, that section 3 is traditionally divided

into two “limbs” for the purpose of exposition, the first limb is whether the accused

was in fact provoked; the second limb is whether a reasonable person would have

been provoked. He sees provocation as only a defence to murder, therefore, before

the accused may rely on this defence, he must have intended to kill or commit

serious bodily harm, the Acts places the question whether the provocation was

enough to make a reasonable man do as he did before the jury, but does not change

the definition of provocation except that nowadays the jury can take into accounts

14 Card, Gross and Jones, Criminal Law. Ist Ed. (Butterworths: London, 1995) p. 81 - 106.
15 Michael Jefferson, Criminal Law 6th Ed. (Pearson Educational Ltd., 2003), p. 62 — 98.
words as well as deeds. Also the enactment of section 3 had not affected the

requirement of a sudden and temporary loss of self-control.

Andrew Ashworth’616 in his book examines the defence of provocation from

the perspective of elements of excuse and element of justification respectively in

provocation. Ashworth admits that many legal systems allow it as a qualified

defence to murder which reduces the crime to manslaughter or culpable homicide.

He raises certain salient questions as to whether it shall ever be a complete

defence, or, if not, how it differs from those condition which are admitted as

complete defences.

Catherine Elliot and Frances Quinn17, according to this author, since the

Homicide Act 1957, provocation may be “by things done” or by things said or

by both, so words alone may suffice. The old case of R. v. Duffy Supra had ruled

that provocation had to be something done by the dead to the accused; but the 1957

Act removes this requirement.

In addendum, Catherine Elliot and Frances Quinn also writes on the

reasonable person’s test saying that for the defence to succeed, it must be proved

that not only would a reasonable person have been provoked, but that such

provocation would have made a reasonable person act as the defendant did. In

other words, that the response was not all out of proportion to the provocation.

16 Andrew Ashworth, Principles of Criminal Law. 2nd Ed. (Clarendon Press: London, 1995), p. 225 — 229.
17 Catherine Elliot and Frances Quinn Criminal law. 4th Ed. (England, Pearson Educational Limited, 2002) p. 61-72
 Owoade,18 examines manslaughter in relation to provocation and briefly

writes on the position of the nature of provocation before the enactment of the

Homicide Act of 1957 and what the defence is like after the Act. He however, joins

other authors to voice out a basic requirement in the defence of provocation. He

also agrees with Okonkwo and Naish to say that the burden of proof in a plea of

provocation, remains throughout on the prosecution to prove beyond reasonable

doubt.

1.7 Conceptual Definition of Terms

This is geared towards examining the relevant terms in this research;

“provocation” and Homicide”.

Provocation
Criminal law lawyers in Nigeria today have noted the dismay that so many

terms with which they are familiar with are not defined in our criminal code. It is

therefore surprising to note that the word provocation is not clearly defined in the

criminal code.

18M. A. Owoade, Law of Homicide in Nigeria. 2nd ed. (Ile-Ife Obafemi Awolowo University Press, 1990), p.70—
103.
 The definition of provocation under the common law was modified in

England under the statutory law. Thus, section 3 of the Homicides Act of l957’ 19

provides that:

Where in a charge of murder there is evidence on which

the jury can find that the person charge was provoked
(whether by things done or by things said, or by both) to
loss his self-control, the question whether the
provocation was enough make a reasonable man do as he
did, shall be left to be determined by the jury.

A critical look at this provision will reveal a modification by the Act which

clearly introduces words as capable of leading to provocation is codified in section

318 and 283 of the Criminal Code.20 Section 318 of the criminal code provides

that:

When a person who unlawfully kills another in

circumstances which, but for the provision of this section
would constitute murder does the act which cause death
in the heat of passion caused by grave and sudden
provocation, to cool, he is guilty of manslaughter only.

The above section has been treated by the court as an import of the common

law into Nigeria. 21

Importantly, provocation can also be defined as something (such as words or

actions) that arouses anger or animosity in another, causing that person to respond

19 The Act is inapplicable in Nigeria as a post 1900 Statute

20 CAP C.38 Laws of the Federation of Nigeria, 2004.
21 R. v. Nwankwo (1959) 4. FSC 39/1963
in the heat of passion.22 Accordingly, another English thesaurus defines

provocation as an “act” which are sufficient to prevent the exercise of reason and

which are sufficient to prevent the exercise of reason at which temporarily

deprived a reasonable person of his self control.23 Literally, provocation means “an

action or event that makes someone angry” that is, the intentional causing of

annoyance or anger to another person that makes him to react violently, when

provocation is used generally the above is presumed, but when sued technically the

provocation is viewed from legal perspective.24

Several judicial decisions have been made with regards to the definition of

provocation. The Nigerian Court of Appeal in Kingsley Oghor v. State25 where

Kolawale JCA sated as follows:

When I said that appellant as provoked the act done by

the deceased I mean it to excite, to stimulate to arouse, to
initiate or to enrage the appellant. But legal provocation
as has been defined all over the common wealth demands
of a higher requirement provocation which will reduce
killing to manslaughter must be of such character as will
in the mind of an average reasonable man satin
resentment likely to cause violence, obscure the reason
and lead to action from passion rather than judgment.
There must be a state at passion without time to cool
pacing the defendant beyond control of his reason...

22 Garner, B. A. The Black’s Law Dictionary 9th ed. (Thomas Reuter Business, 2009) p. 1346.
23 Osborn’s Concise Law Dictionary 7th ed. (Sweet and Maxwell: London, 1953), p. 259
24 Abdulrazag, A. A critical appraisal of the extent and limit of the defence of provocation in murder change in

Nigeria. (A Publication of the LSS Umalorins, 2010), p.59.

25 (1990), 3 NWLR pt. 139 at 484.
 It does appear that provocation under our statute is in consonance with the

common law definition of provocation. This is the reason why the court in Biruwa

v. State26 applied the common law definition attached to provocation, thus once

the judge bears in mind the constituent elements of provocation, judgment will be

given. A court of law must at the end of the trial of an accused person w ho rises

the defence of provocation ask itself not the definition of the term but must

examine the facts proved by an evidence, so as to determine whether the defence

has been properly made to enable reduce the offence from murder to manslaughter.

Homicide

The word Homicide is a shortened stem of homo, homimsman-caedene,

cidere to kill, one who kills a human being.27 According to the Black’s Law

Dictionary; Homicides is the killing of one human being by the act, procurement

or omission of another.28 A person is guilty of criminal homicide if he purposely,

knowingly, recklessly or negligently causes the death of another human being. The

term homicide is neutral while it describes the act, it pronounces no judgement on

its moral or legal quality.29

26 (1985)3 NLCD 16 at 1713.

27 The Oxford English Dictionary, 5th ed. (Oxford University Press, London, 1970). p.359.
28 The Black’s Law Dictionary 9th ed. (West Publishing, 2008), p. 902.
29 The Black’s Law Dictionary 6th ed. (West C. Publishing Co. 2006), p. 734.
 The World Encyclopedia vol.9 defines homicide as the killing of one person

by another. Thus homicide can be lawful30or unlawful. 31 Homicide is therefore the

act of killing one person by another, though the issue of the act being lawful or

unlawful depends on the circumstances of the case. 32

30 Section 306 of the Criminal Code CAP C. 38 Laws of the Federation of Nigeria, 2004
31 Section 215 of the Criminal Code CAP C. 38 Laws of the Federation of Nigeria, 2004
32 Owoade, M. A. Law of Homicide in Nigeria 2”’ ed. (Obafemi Awolowo University Press, 1990). p.2.
 CHAPTER TWO

MEANING AND NATURE PROVOCATION

2.1 Nature and Meaning of Provocation

Although provocation is defined in the criminal code, judicial acceptance in Oghor

v. State33 by the Nigerian courts is the same as opined by Delvins in E. v. Duffy’

Supra.

The nature of provocation simply means the form provocation takes.

Provocation may be by words or deeds. The common law rule was that words

alone could not be sufficient provocation to reduce murder to manslaughter.

However, this rule was modified in Holmes v. D.F.P.34 where it was said that

words alone could not amount to provocation, “except in circumstances of a most

extreme and exceptional character”. But what is meant by circumstances of a most

extreme and exceptional character” is a question of fact not law, and will vary with

each given case. This was approved in R. v. Adekanmi35 where Francis J. held that

in considering provocation:

The effect it should be expected to have on a reasonable

man must be taken to mean the effect it would be

33(1999) 2 LRCNCC
34 (1964) AC 588
35 (1944) 17 NLR 99 at 101
 expected to have on a reasonable man of accused
standing in life.

In that case the wife of the accused jeered at him, who happened to be an

illiterate and primitive peasant, tainted him with being impotent, and told him that

she was having sexual connection with other men. This was held to be sufficient

provocation to the offence from murder to manslaughter.

However, since section 28336 of the criminal code defines provocation for

the purpose of section 318,37 there should be no question as to whether word alone

can, amount to provocation sufficient to reduce murder to manslaughter. But there

appears a conflict of authorities in the case of Basil Akalezi v State38 the question

as whether mere words of provocation suffice in reducing murder to manslaughter.

The appellant was tried and convicted for murder in the High Court and was

sentenced to death.

The facts as established by the evidence, which was offered by the

prosecution, were that the deceased was having an amorous discussion with his

niece in his presence. The appellant slapped the deceased on the face twice and

later ran away. The appellant gave him a chase, caught up with him and stabbed

him with a penknife. The appellant evidence in which he alleged that the deceased

provoked him be cutting his jaw during the verbal exchange was disbelieved by the

36 Ibid at pg
37Ibid at pg
38 (1993) 2 NWLR Pt. 273 at 10
trial court. He further appealed and confirmation was given to the decision of the

trial court. On further appeal to the Supreme Court was equally dismissed. This

reasonable man’s test comes into play in this issue, as a reasonable man in that

kind of situation will not be provoked to the extent of stabbing the person to death.

In Nungu v. R39 for a younger brother to say to his elder brother during a quarrel

that he had provided money for his (elder brother’s) marriage had been held not to

amount to such provocation as would reduce murder offence to manslaughter.

Also, the interference with another’s property especially the destruction or

attempted destruction thereof could amount to provocation.

Under section 62 of the Penal Code as applicable in the Northern part of

Nigeria for the defence of provocation to succeed to justify the killing of a human

being, it must be shown that the life or body or property of the accused was in

imminent danger from an attack by the deceased and that the accused use no more

force than necessary to repel the attack, and that the force used was justifiable in

the circumstances. This was held in the case of Chungwom Kim v The State.40

In Kwaku Mensah v. King41 it was held that where a man is assaulted in

the course of defending his property or while trying to apprehend a thief, there can

be no question, but that this is provocation of a most serious character.

39 (1953) 6 FSC. 50; State v Ufomba (1972), ECSLR 775; where a village wife who was nursing a seven months old
child was then five months pregnant called her husband a fool when he questioned her as to who was responsible for
pregnancy. It was held to constitute provocation
40 (1992) L.R.CN.C.C 791
41 ‘(1946) AC 3; The Fact of intervening in a fight and wounding an already wounded unarmed man who is

struggling t unarm his original assailant was held in R. v Ogodo (1961) All NLR 700 to be an act of provocation.
 Some circumstances can make witchcraft to amount to provocation as was

seen in the cases of R. v Kankomba.42 Thus the forcible grasping of a man’s private

parts may constitute sufficient provocation. Although there is no rule to this effect

but each cause must be considered on its particular factors as was illustrated in

some decided cases.43

Equally, it should be noted that lawful act, for example a lawful arrest by a

private person cannot constitute provocation as seen in the case of State v. Nweke44

but on the other hand an unlawful arrest may be evidence of provocation to a

person who knows of the illegality. But if there is no evidence that the accused was

not aware of the illegality the presumption most favourable to him should be made.

This is the decision of the court in State v Aleke.45 Where the court held that the

unlawful arrest of the accused by the deceased constitutes provocation.

However, provocation given by a group of person may be successfully

pleaded where the person so provoked kills a member of such group. In Dummeni

v. Queen,46 a group of Barkegi people caused and fought a group of Dumenni

people with sticks. The appellant and the deceased received injury during the fight

but not directly from each other. The appellant on hearing that a Dumenni was

killed, struck an axe in the abdomen of the deceased who was already injured and

42 (1952) 14 WACA 236

43 R. v Jinobu (1961) All NLR 627 at 629; Ifenodo v State (1967) NMLR 200
44 (1965)AIINLR 114
45 (1965)9 ENLR 82
46 (1955)15 WACA 5
who belonged to the Barkeji group. The trial judge held that in such a circumstance

it could not be said that the deceased provoked the appellant. On appeal, it was

held that, they shout that Barkeji’s had killed. Dumenni did not constitute such

provocation so as to reduce the crime to manslaughter irrespective of the fact that

the deceased may not personally offered provocation. Also in Alochukwu v The

State47 cited by M. U. Peter Odili JSC in the case of Emmanuel Ogar Edoko v The

State48 as it concerns the definition of provocation.

2.2 Statutes Creating Provocation

Under the Common Law1 the defence of provocation was statutory codified

in 1957 by section 3 of the Homicide Act, 1957.49 It is important to note that

section 3 of the Homicide Act 1957 affected provocation as a defence under

common law as enumeratedin the words of Smith and Hogan,50 it made the

following changes in the law:

(a) It made it clear that thing said and done may be sufficient provocation, if the

jury is of the view that, it would have provoked a reasonable man.

47 2005) 9 NWLR pt. 930, 277 at 235; Karibi White JSC, stated thus “as defined in section 283 of the Criminal Code
is in relation to an offence of which an assault is an element. It includes” any wrongful act or insult of such a nature
as to be likely to when done to an ordinary person to another person who is under his immediate
care…and to induce him to assault the person by whom the act or insult is done or offered”.
48 (2015) LER SC 315/2012
49 Ibid at pg.

50Smith and Hogan, Criminal Law. 2nd ed. (Butterworth:, London, 1988) p. 337.
(b) It took away the power of the judge to withdraw the defence from the jury
on the ground that there was no evidence on which the jury could find that a
reasonable man have been provoked to do as he did.
(c) It took away the power of the judge to dictate to the jury what were the
characteristics of the reasonable man.

Criminal Code

The defence of provocation is a recognized defence in Nigerian Criminal

Law. Under the criminal code, it is codified in section 283, 284, and 31551 thereof.

Unlike the Common Law, the defence of provocation arises under the Nigerian

Criminal law in two clear and distinct instances. Firstly, as a total defence to a

charge of assault and secondly as a partial defence to murder.

Section 318 of the Criminal Code provides that if a person kills another in

the heat of passion caused by grave and sudden provocation,52 and before there is

time for his passion to cool he is guilty not of murder but of manslaughter. The

section does not attempt to define provocation and the courts have treated it as

51 Criminal Code Cap C 38 laws of the Federation of Nigeria, 2004

52.This is an additional requirement for Lagos State. See Criminal Justice (Miscellaneous Provision) Decree
No.84 of 1966. S.4.
imputing the common law of England into Nigeria.53 In Obaji v State,54 the

Supreme Court considered the question whether the meaning of provocation in

section 318 is to be found in section 283 or in the common law, but held that both

sections should be read together.

Penal Code

The Penal Code provided for the defence of provocation in section 222, 265

and 266 of the Penal Code.55 Although the Penal Code did not attempt to define

what provocation is, as section 221 (1) of the code merely contained what

provocation does.

Culpable homicide is met punishable with death of

the offender whilst deprived of power of self control
by grace and sudden provocation, cause the death of
the person who gave the provocation causes the death
of any other person by mistake or accident.

The provision of the above section provides that such provocation must be

grave and sudden and must have denied the person of this self-control at the

material time. The explanation of this section has been given in the case of Ahmed

53 R. v Nwanjoku (1937)3 WACA 208; R. v Afonja (1955)15 WACA 26.

54 (1965) 1 All NLR 265

[
55 CAP C 34 Laws of the Federal of Nigeria, 2004
Hade v. The State56 “That whether the provocation was grave and sudden enough

to prevent the offence from amounting to culpable homicide punishable with death

is a question of fact”.

Thus for an accused person to avail himself of this defence, it must be

established that:

(a) There was a wrongful act or insult

(b) Such wrongful act or insult is capable of causing loss of self control to an

ordinary person.

(c) The accused acted on the sudden and in the heat of passion without cooling

time.

(d) The act of the accused was proportionate to the provocation arising from the

wrongful act or insult. Thus the law does not tabulate the acts that are likely to

cause or produce provocation but it is concerned with the creation and

existence of the provocation. Importantly, section 3857 of the penal code sets

act circumstances under which provocation is not available s to an accused

person. The section provides that grave and sudden provocation, which

nullifies any offence or mitigated punishment therefore shall not include:

(a) Provocation sought or voluntarily contracted by offender as pretence for

committing any offence

56 (1999) 9 NWLR pt 619 at 369.

57 CAP C 38 Laws of the Federation of Nigeria 2004
(b) Provocations given by anything done in obedience to law or by a public servant

in the lawful exercise of the powers of such public servant.

(c) Provocation given by anything done in the lawful exercise of the right of

private defence.

2.3 Comparism between the Defence of Provocation under Common Law

and Nigerian Law

Under the English Law, the defence of provocation is available only upon a

charge of murder with the intention of reducing the offence to manslaughter.

Provocation is only a mitigating factor and not a complete defence and cannot be

pleaded as a defence to a lesser charge like assault. Though on the other hand, by

virtue of section 284 of the Criminal Code,58 persons charged with any offence of

which assault is an element can plead the defence. Thus provocation in Nigeria can

be pleaded as a complete defence to assault.

Although the section refers simply to assault. It is submitted that the defence

of provocation is available on a charge of any offence of which assault is an

element, provided, the requirements of this section is satisfied. Where the force

58 CAP C 38 Laws of the Federation of Nigeria, 2004; “a person is not criminally responsible for an assaults
committed, upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of
the power of self control and acts, upon it on the sudden and before there is time for passion to cool, provided that
the force used is not disproportionate to the provocation and is not intended, and is not such as is likely to cause
death or grievous harm?
used is neither intended nor likely to cause death or grievous harm but do in fact do

so, the accused may escape liability either under section 2459 of the Criminal Code

or Section 248.60 To this extent, provocation may be a complete defence to a

charge of manslaughter of which an assault is an element.61

In State v Christian Chuazor,62 the facts were that during the course of a

fight provoked by the deceased, the deceased threw a stick at the accused and he

later threw it back at him. the stick struck the deceased in the right eye and

perforated his skull leading to brain abscess from which he eventually died or a

charge of manslaughter the court held that, the accused was neither negligent or

reckless in his use of the stick and therefore had of defence under section 285 of

the criminal code63 which provides that it is lawful to use reasonable force to

prevent the repetition of a provocative act or insult provided such force in to

intended nor likely to cause death or grievous harm. It must be commented upon

that, this case might perhaps have been more appropriately decided under section

2464 of the Criminal Code. However, in cases where section 24 is inapplicable,

such as where the court chooses to apply the “egg shell rule”, section 384 of the

criminal code may still apply to relieve the defendant of liability.

59 CAP C 38 Laws of the Federation of Nigeria, 2004

60 Criminal Code, CAP C 38 Laws of the Federation of Nigeria, 2004.
61 R. v Sleep (1996) Qd. R47
62 (1974)8CCHJ 1179
63 CAP C38 Laws of the Federation of Nigeria, 2004
64 Ibid at pg.
Another observation is that there is no rational basis for allowing provocation to be

a defence to assault alone and not to some other offence like defamation65 and

malicious damage66 to property. If someone is provoked under the circumstances

defined under the code and as a result of such provocation utters in the heat of

passion before his passion cools, some defamatory matter about man giving the

provocation, he should be able to rely on such provocation, in the same way as he

would be able to under section 284 had he assaulted the person offering the

provocation.

Under the penal code, any person who assaults or used criminal force67 on any

other person is liable to imprisonment for one year and a fine, if such assault or

criminal force does not lead to hurt. If it results in grievous harm, then the person

is liable. To imprisonment for three years together with a fine.68

The position under the penal code is similar to the position under English

Law, except that under the latter system, the extent of the mitigation to which a

person provoked is entitled in any case depends, upon the good sense of the trial

and is not laid down by law.

65 Section 375 of the Criminal Code Laws of the Federation of Nigeria, 2014.
66 Section 451 of the Criminal Code Laws of the Federation of Nigeria, 2014.

67 Section 262 and 263 of the Penal Code CAP C 34 Laws of the Federation of Nigeria, 2004.
68 Section 265 of the Penal Code CAP C 34 Laws of the Federation of Nigeria, 2004.
 In England before the passing of the Homicide Act 195769 words alone can

hardly amount to provocation but this was not the case in Nigeria, where the

definition of provocation under the criminal code includes any wrongful “act” or

“insult”. Although it was suggested in R. v. Mayer Nungu70 that mere use of words

could scarcely amount to manslaughter, more recent decisions of the

69 The Act in effect now enacts that words alone can amount to provocation in England since it directs the judge to
take account, if all things said or done during ruling whether there has been provocation Holmes v. DPP Supra.
70 (1950) 5 FSC 93; Alonge v. AG Western Nigeria “it was held that the statement in the English case of R. V.

Mason” there words of provocation could not.., have the effect of reducing the crime from murder to manslaughter.
Supreme Court have put it beyond questions that in appropriate cases and

circumstances, provocative words alone can avail and accused person.

One of the restrictive rules of common law was the test of the reasonable

man. Thus under common law, the emphasis is usually on the test of reasonable

man but in Nigeria, a socio-cultural background test has been implied in

ascertaining a reasonable man. For instance, the passion of a primitive peasant

could be more readily aroused than that of an educated civilized person, thus the

test adopted is usually that of a reasonable man in the accused standing in line and

civilization, rather than blanket approach of the common law. It is implicit in the

test of the reasonable man, no matter the form it takes in any circumstance, the

doctrine require that the mode of resentment by the accused must bear a reasonable

proportion to the kind of provocation offered to him. Thus, a retaliatory measure,

which is far in excess of the provocation offered, stands to be condemned as

primitive and unreasonable and the accused may lose the benefit of the defence of

provocation.

In James Biruwa v The State71 the appellant was charged with culpable

homicide. He was alleged to have shot the deceased in the neck with an arrow. He

claimed that the deceased seduced his wife, and the deceased’s second wife taunted

him with cowardice. The trial judge rejected his defence of provocation. Upon

71 (1985) 3 NDLR 167

appeal, the court by majority decision disallowed the appeal and confirmed the

conviction and sentence of the trial judge. This is an example of a Nigerian case

where there appears harmony between the common law principles and the Nigerian

law that the mode of resentment should not be in excess of provocation offered.

2.4 Provocation in other Jurisdictions

An appraisal of the doctrine of provocation in other jurisdiction is essential

in order to critically analyze the doctrine under Nigerian Criminal law and how it

might enhance some changes in the Nigeria criminal law, Canada, Australia,

England and other jurisdictions will be examined stating how the defence of

provocation is applied and what change should be made to meet the ever changing

needs of the society.

2.4.1 Canada

In Canada, the defence of provocation is governed by section 232 of the

criminal Code under the caption “murder reduced to manslaughter”. According to

the Section which reads thus: culpable homicide that otherwise would be murder,

may be reduced to manslaughter if the person who committed it did so on the heat

of passion caused by sudden provocation.

2. A wrongful act or an insult that is of such a nature as to be sufficient to

deprive an ordinary person of the power of self control is provocation for the

purposes of this section, if the accused acted on it, on the sudden and before there

was time for his passion to cool.

3. For the purposes of this section, the question:

(a) Whether a particular wrongful act or insult amounted to provocation.

(b) Whether the accused was deprived of the power of self control by the

provocation that the alleges he received, are question of fact, but no one shall

be deemed to have given provocation to another by doing anything that he had

a legal right to do, or by doing anything that the accused incited him to do in

order to provide the accused with an excuse, for causing death or bodily harm

to any human being.

4. Culpable homicide that otherwise would be murder is not necessary

manslaughter by reason only that it was committed by a person who was being

arrested illegally but the fact that the illegality of the arrest was known to the

accused may be evidence of provocation for the purpose of this section.

In trial there must be sufficient evidential basis with respect to each element

of the defence. This requires that the evidence must be reasonably capable of
supporting the inferences necessary to make out the defence.72 There must be

evidence upon which a “reasonable jury acting judicially” would find the defence

successful.73 In deciding, the judge must consider the totality of the evidence”.

The provocation must be a subjectively held belief that is reasonable. This

requires: a wrongful act or insult of such a nature that it is sufficient to deprive and

ordinary person of the power of self-control (objective) and the accused act upon

that insult on the sudden and before there was time for his passion to cool

(subjective).

In determining the position of an ordinary person, an objective test is used.

Thus a particular characteristics that are not “peculiar or idiosyncratic” such “as

sex, age, or race”, this intends to contextualize the objective standard but not so far

as to individualize it. The objective element in the defence of provocation requires

that there should have been wrongful act or insult of such a nature that it would be

sufficient to deprive an ordinary person of the power of self-control.74

2.4.2 America
The separate provocation rules exist in each of the fifty American Sates. As a result

in the USA there is an opportunity for concurrently developing legal rules;

concerning rules: traditional provocation rules and the Model Penal Codes

72 R. v Tran (2010) SCC 58 (Can L 11), (2010), 3 5CR 350 at 41.

73 R. v Krasniqi (2012) ONCA 561 (Can. LI 1,295 OAC, 231, at 52.
74 R. v Hill (1986)1 SCR313 at331; R. v. Thibert (1996)1 SCR37at 4.
(MPC) Extreme Emotional Disturbance (EED) provision.75 Thus particular
practice implies that each state has its own set of rules on how the defence of
provocation shall be governed, while there is also another set of general rules that
govern the defence.

On the rationale as to why there are traditional rules on provocation in all

different states Forrel comments as follows:

The United States Supreme Court lacks jurisdiction to

review homicide cases concerning provocation because
provocation typically does not involve a constitutional or
federal issue. Because criminal law is an area
traditionally left to states, in the United States there is
little judicial guidance concerning provocation doctrine
from Federal Court. 76

The general rules on provocation in the USA are contained in section 210 (3)(l)(b)

of the Model Penal Code of 1962, first adopted by the American law institute. The

relevant section provides:

A homicide which would otherwise be murder (is

manslaughter when it) is committed under the influence
of extreme disturbance for which there is no reasonable
explanation or because. The reasonableness of such
explanation or excuse shall be determined from the
viewpoint of a person in actor’s situation under the
circumstance as he believes them to be.

75 C. Forrell, “Gender, social values and provocation law in Australia, Canada and the United State of America”
Journal of Gender, Social Policy and the Law. volume 14:1, 2009 at p. 43 -44.
76 C. Forrell Journal of Gender, Social policy and the Law (2009) p.44.
 The MPC rules emerges diminished responsibility and provocation and

accommodates other defendants who kill in circumstances of extreme emotional

pressure. This is noted by Forrell who further contends that the MPC is the

requirement that the jury find that the killer acted.

Under the influence of extreme mental or emotional

pressure for which there is a reasonable explanation or
excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a
person in the actor ‘s situation under the circumstances
he believes them to be.

The question of how the courts have dealt with the aspect of EED was

discussed it he case of Patterson v New York.77 The elements on provocation

implicit in the MPC and Federal Penal Code have been outlined in the case of the

State v. Viera78 as:

(a) The provocation must be adequate

(b) The defendant must not have had time to cool off between the provocation

and the slaying

(c) The provocation must have actually impassioned the defendant and

(d) The defendants must not be seen to have actually cooled off before the

slaying.

77 (1977) 432 US 197

78 (2001) 787 a. 2ds256 264 N.J
 Being a country that provides for a jury system, matters pertaining to the

defence are determined by the jury. Because it is a classical jury question, one

where the jury is asked to determine what the ordinary person would do under the

circumstances.

The American court have had occasion to interpret the statutory provisions

on the defence of provocation. In the case of Mullancy v Wilbur,79 the defendants

had been convicted in a maine State court of murder despite his defence of

provocation. On the rules of procedure taken once the defence of provocation was

raised by the defendants, it was held by the learned justices as to what practice is to

be followed in Re Worship.80

Once evidence tending to show provocation was

introduced the state not the defendant had to bear the
burden of prove beyond reasonable doubt the absence of
provocation.

2.4.3 Queensland
Provocation operates as a partial defence to murder under section 304 of the

Criminal code (Qld). Under section 308, the penalty for murder is a mandatory life

sentence; however, when provocation mitigates murder to manslaughter, there is a

discretionary sentence, with a maximum sentence of life imprisonment.81 The

defence states that:

79 (1975) 421 US 684

80 (1970) 397 US 358
81 Section 310 Criminal Code of Queensland
 When a person who unlawfully kills another under
circumstances which, but for the provisions of this
section, would constitute murder, does act which cause
death in the heat of passion caused by sudden
provocation, and before there is time for the person ‘s
passion to cool, the person is guilty of manslaughter
only.82

To establish provocation,83 the defence bears the evidential onus and if

accepted as a question of law, the prosecution must prove beyond reasonable doubt

that the defendant did not kill because of the provocation. But the defence can be

categorized into three elements:

(1) Provocation conduct

(2) Subjective element

(a) The loss of self control was because of the provocation and not premeditated;

and

(b) Loss of self-control was sudden; and

(3) Objective elements:

(a) Ascertain the gravity of the provocation; and

(b) An ordinary person provoked to the same gravity could have formed an

intention to kill or cause grievous bodily harm.84

82 Section 304 Criminal Code of Queensland

83 M. Findlay Criminal Law problems in Context (2006).
84 Van Den Hoek (1986) 161 CCR 158; R. v Kennedy (1993) 2 v R 470;’ R. v Terry (1964) v R 248;Masceiantanio

v R (1995) 183 CLR 58, 66; Green v R. (1997) 191 CLR 334; Stangel v. R. (1990) 1717 CLR
2.4.5 Australia

Section 23 of the Australian Penal Code provide for the defence of

provocation. In the defence of provocation the question become whether the test

for loss of self-control should be determined exclusively by reference to the

subjective characteristics of the defendants or should be qualified by objective

standards of self control which can reasonably be expected from hypothetical

reasonable or ordinary person placed in the defendant’s position. Community

expectations about the reasonable or ordinary responses to provocative conduct

have analysis limited the availability of the defence.

Before the emergence of the reasonable man standard, these limitations took

the form of substantive rules that required the defendant’s retaliation to occur

suddenly without delay or premeditation while at the same time being

proportionate to the deceased’s wrongful act or insult.85

Over the last twenty years, the High court of Australia has transformed the

provocation defence in many ways and the rules requiring suddenness and

proportionality of response have been banished from the substantive laws although

they remain relevant factors ht the jury may use as evidence to infer that the

85 Mirko and Kenneth Criminal Laws in Australian. 2nd ed. (2007).

defendant had lost self control and that the defendant’s response is one which

could be shared by ordinary person.86

In multi-cultural Australia, any of the defendant’s personal characteristics

whether permanent or temporary are relevant and this depends on the person’s

place of birth, tradition or religion.87 Despite the judicial attempts being made to

develop a multicultural dimension of the ordinary person test, the high court only

acknowledge age on the sense of immaturity as the only qualification to the

ordinary person test.

2.4.5 England
The common law rule governing the defence was stated by Delvin J. in R. v

Duffy Supra. But the common law rule was modified by the Homicide Act of 1957,

in particular section 3 provides useful points.

The provocation defence has been described as a “failure of proof defence

and as an offence modification”. As a failure —of-proof defence, it is

understood to negate the mental or fault element of murder, without affecting the

mental element of the lesser offence.88

86 Simon and Kurmaralingam, Alternative Law Journal (1996), p.56

87
88 Robinson P. Criminal Law Defences; A systematic analysis (Colombia Law Review, 1982), 1999, 232 -3; in
Robinson’s words “the failure of proof defence of provocation) is said to negate the required malice of murder, and
thereby reduces the defendant; liability to manslaughter Ibid 206 - 6.
 On the other hand, under the formulation “offence modifications;

provocation is portrayed as a defence capable of reducing culpability without

affecting the mens rea of murder.89 This latter approach to provocation captures

better the present understanding of the defence in English Law as opined by

Wasik.90 The pleading provocation presupposes that the prosecution has provided

sufficient evidence to justify the jury’s returning a verdict of guilty of murder.

Thus provocation when pleaded as a partial defence to murder, offers the typical

example of formal mitigation. 91

It should be noted that the homicide Act 1957 create or modify, but assumes the

existence of, and amends the common law defence. It does not state the effect of a

successful defence. Ormerod notes that section 3 of the Homicide Act 1957

assumes the existence of the dual test, 92

1. Was the defendant provoked to lose his self-control? (A subjective test) and
2. Was the provocation enough to make a reasonable man do as he find? (An

objective question).

89 Archibald, T. The Interrelationsh4p between provocation and mens rea: A Defence of loss of self control
(Criminal Law Quarterly, 1985), p 454, 456-7.
90 Wasik M. Partial Excuses in Criminal Law (Modern Law Review 1982), 516. 628 — 529.
91 Hart, H. L. “Prolegomenon to the principles of Punishment in Punishment and Responsibility (Clarendon Press:

Oxford 1986) p.15.

92 D. Ormerod, Smith and Hogan Criminal Law (Oxford University Press, New York, 2005) p. 442.
 The courts have created a number of rules based on the section to determine

when and how the defence may be used.93

In interpreting section 3 of the Homicide Act, the English Courts have taken

to give words their ordinary and natural meaning free of the technical limitations of

the common law.94 This is done under the subjective and objective conditions:

(a) The Subjective condition:

This requirement is created as an attempt to distinguish revenge killing of a

pre-meditated or calculated nature from killings committed in the heat of the

moment.95

The lost of self control must be seen to be sudden and temporary. The words

“sudden” and “temporary” imply only that the act must not be premeditated and

calculated. It is the loss of self-control which should be sudden, which does not

mean immediate. In the landmark case of Ahluwalia,96 the Lord Chief Justice

Taylor stated that:

The longer the delay and the stronger the deliberation

on the part of the defendants”, the more likely it will
be that the prosecution will negative provocation.

93 R. v Marks (1998) Crim. 1R 676; R. v Cunningham (1959) 1 Q.B. 288; where it was decided that provocation is
not a defence to a charge of wounding or nay change other than murder: DPP v. Ivlancini (1942) AC I.
94 R. v Doughty (1986) 83 Crim. appeal R.319; Herein it was held that the judge was bound by the plain words of the

Section to leave provocation to the jury.

95R. v Brown (1972)2 All ER 328 at p.133

96(1992) 4 All ER 889; As in Thornton, following the accused conviction of murder at first instance, a retrial was
ordered and when the defence of diminished responsibility was put, the accused was convicted of manslaughter.
 In Ibrams97 and Thornton,98 the court of appeal has reaffirmed that there

must be a “sudden and temporary loss of self-control” as a necessary requirement

to proving the defence.

(b) The objective condition:

In the past, what was capable of amounting to provocation was limited to

certain forms of conduct that, as a matter of law, were deemed sufficiently

offensive.99 The modern approach is to leave open the forms of conduct capable of

amounting to provocation in law. Section 3 of the homicide Act has made three

important changes to this practice;

(i) it made it clear that things said alone may be sufficient provocation, if the

jury should be of the opinion that they would have provoked a reasonable

man.

(ii) it took away the power of a judge to withdraw the defence from the jury

on the ground that there has no evidence on which the jury could find that

a reasonable man would have been provoked to do as he did.

97 (1992) I All ER 306

98 (1992) 1 All ER 306. In this case a woman suffering from battered woman syndrome went to the kitchen, took a
sharpened penknife, and returned to stab her husband. She was convicted of murder and appealed on the grounds
that instead of considering the final provocative incident, the jury should has been directed ... to consider the event
over the year leading up to the killing... ( Per Beldam U). But a retrial was ordered and the accused was convicted of
manslaughter or the ground of diminished responsibility.
99 Stephen A. Digest of the Criminal Law, Article 224 and Fisher (1837) 8 C and P 132; Holmes v. DPP Supra.
 (iii) it took away the power of the judge to dictate to the jury what were to be
the characteristics of the reasonable man.
.
Lord Diplock in the case of Camplain v DPP100 stated how the jury should

be directed:

The judge should state what the question is using the very terms of the

section, he should then explain to them that the reasonable man referred to in

question is a person having the power of self control to be expected of an ordinary

person of the sex and age of the accused but in other respects sharing such of the

accused person’s characteristics as they think would affect the gravity of the

provocation to him; and that the question is not merely whether such a person

would in like circumstances be provoked to lose self control but also would react

to the provocation as the accused did”.

The learned jurist Ashworth noted in a seminal article that the proper

distinction is that the individual peculiarities which Lear on the gravity of

provocation should be taken into account. Whereas individual peculiarities bearing

on the accused person’s level of self-control should not. 101

100 (1978) AC 705

101 Ashworth D. The Doctrine of Provocation (CU, 1976) 292.
 The rules to be followed in determining the objective test or the relationship

between provocation and the mode of resentment were laid down in Philips v R. in

which learned justice stated:102

... The question is... not merely whether in their opinion

the provocation would have made a reasonable man lose
his self- control but also whether, having lost their self
control; he would have retaliated in the same way as the
person charged in fact did.

102 (1969)2 AC l30 at p. 137

 CHAPTER THREE

AN OVERVIEW OF THE ELEMENTS OF PROVOCATION

3.1 Element of Provocation

There are elements that must exist for a defence of provocation to

succeed. All of these elements must be proved. According to Coker JSC in Ewo

Akang v State103 “provocation which reduces what would otherwise amount to

manslaughter is a concept made up of a number of elements which must co

By virtue of section 288, 284 and 318 of the Criminal Code and section 38

and 222(1) of the Penal Code several basic elements of the defence of provocation

are established.

3.1.1 Heat of Passion

It has variously seen described that “le crime passionel,” 104 or “heat of

passion”105 was perhaps the first type of killing recorded in history,106 and has

103(1971)1 All NLR46

104Degreeff, L’etal. Dangereux Danles cimes passionels; L. Randzinowicz, crime passionel (1931); Rawlinson le
Criem passnionel, 103 Solicitors. J. 5151 (1959).
105It is called “Provocation doctrine”. In Modern United States Statutes “heat of Passion” is reflected”. CAC. Penal
code section 192 (West) (Voluntary manslaughter is defined as present “upon a sudden quarrel or “heat of passion”)

106The first crime reported in the Bible was the killing of Abel by Cain. Genesis 4:1-8. Although the facts
surrounding the event are less than clear, in light of the fact that it was a familial killing, in which jealousy appears
to have been a factor this may constitute i.e crime passionel.
remained an extremely common type of homicide over the centuries. Today

criminal homicides commonly involve relatives, lovers, and friends, as both

perpetrators and victims.107 Frequently, such homicides are committed in the heat

of passion.

This element requires that the act which causes death must be done in the

heat of passion before there’s time for the passion to cool. It follows from this that

between the alleged act of provocation and the act of the accused there was

sufficient time for the passion to cool and for reason to resume its seat the defence

of provocation will not be available.108 In determining here there had been enough

cooling time, it is usually proper to take into account the degree of provocation

offered.

But the defence will be available even though there is an interval of time

between, the act of provocation and the act of the accused, provided reflection is

not possible within that interval.109 The passion must have been caused by sudden

provocation and in deciding whether the provocation was sudden, previous

wrongful acts or insults by the deceased are not sufficient because they do not
107 Bourdowns A. A Classification of Homicides, (Criminology 1974), 525, 531 - 38; Sornarajah, Commonwealth
innovations on the law of Provocation, (24 International and Company, 1975) 184, 199.

R. v Haward (1833) 73 All ER 1188; Stephens v. Cop per Nose Adeogun JCA “that calling the appellant a slave
108

was not sufficient provocation to warrant going home to fetch a gun, during which his passion ought to have cooled
down, and returning to kill the deceased with it”; R. v Green Supra; Ihuebeka v State (2002) 13 WRN 150.

109 R v Ogodo (1961) All NLR 700; Section 300 of Indian Penal Code.
supply the requirement of suddenness.110At times, provocation given by111 a group

of persons acting in concert may be successfully pleaded where the person so

provoked kills a member of the group.

3.1.2 Loss of Self-Control

It is not enough that a wrongful act was done to the accused by the victim

nor is it sufficient merely to allege that an insult had been offered. The provocative

act must be such as to cause an ordinary person to lose his self- control. The test

therefore is the effect which the provocation would have on a reasonable man, not

the effect which it did actually have on the accused.112Yet, if a reasonable person

would be provoked but the accused himself was not provoked, a plea of

provocation will fail.

The cardinal question which calls for determination is who an ordinary person is?
This question has continued to feature in cases arising from provocation both at
common law and under the criminal code. Reference under the criminal code to an
ordinary person has in a long line of cases been likened to reference at common
law to the reasonable man. As general known, the reasonable man at common law

110 But as was stated in Mehemet Ali v R. (1957) W. ALR 28 at 39 per Jackson J. “the final wrongful act or insult
might, of itself be comparatively drifting, but when taken with what had gone before might be the last straw in a
cumulative sense of incidents which finally broke down the accused’s self control and caused him to act in the heat
of passion”.
111 Dummeni v R. (1995)15 WACA 75

112 R. v Nwanjoku (1937) 3 WACA 208.

is only a fiction with no known or well defined characteristics or attribute, the
court where thus satisfied to couch the test of reasonableness in general terms.113

It is however, important to note that Nigerian courts, in assessing the

reasonable man have always taken into account, the reasonableness expected from

the ordinary person in the position of the accused. Thus, the accused person’s

standard of life,114 civilization, class, religion115 and general background are

matters to be taken into consideration in determining how a reasonable man could

react to the act or insult done to or offered the accused person.

3.1.3 Wrongful Act or insult

For an accused person to rely on the defence of provocation, he must first of

all show that there was an act considered wrongful or an insult which was

sufficient to cause an ordinary person to be provoked and which in fact did

provoke the accused person.

The question of whether it was a wrongful act does not reflect in the

criminal code. As a result recourse to judicial authorities will be useful for our

113 Risiawa Shanawa v. Sokoto Nature Authority (1962) 1 All NLR. It was held that “the test to be applied is whether
the provocation was sufficient to deprive a reasonable man of his self-control not whether it was reasonable to
deprive him of his self-control, the particular person charged; DPP v Camplin (1978) All ER at
1972.
114 R. v Adekanmi (1994) 17 NLR 99 at 101
115 Ruma v Daura (1960) 5 FSC 93
purpose. Thus, in Isenki v The Queen116 The federal Supreme Court had the

opportunity to consider whether the unjustified and brutal beating of the appellant

could in law amount to a wrongful act of provocation.

Again in Jinobu v The Queen117the evidence was to the effect that a dispute

arose between himself and the deceased in their bedroom late at night. In the

course of the argument, the deceased caught the accused by his private part,

causing him severe pain. He picked up what he thought was a stick and struck the

deceased twice before he realized it was not a stick but a machete and the deceased

died of the wounds inflicted. Brett F.J. in delivering the judgement of the court

held that:

As regards provocation, we have no doubt that a

forcible grasping of a man’s private parts such as was
described is... a wrongful act of such a nature as to be
likely, when done to an ordinary person to deprive
him of the power of self control and induce him to
assault the person by whom the act is done.

What emerges from the cases considered above is that the intense pain may,

depending on the circumstances of each case, be considered as a wrongful act

116 (1959) FSC 33/59 unreported; Risicuwa Shanawa v Sokoto Nature Authority Supra “in our opinion, an a proper
consideration of the whole evidence before the court, it is apparent that the appellant was deprived of the power of
self-control by grace and sudden provocation as to reduce the offence to one of culpable homicide not punishable
with death contrary to section 222(1) of the Penal Code”.
117 (1961) All NWLR p.627 at 629.
sufficient to amount to provocation. In cases involving adultery by the accused

spouse, the courts have been reluctant to hold that adultery simplicita constitutes

such a wrongful act.118

118R. v Adekanmi Supra; Biruwa v. State Supra; similarly in Adache v. The Queen (1962) All NLR 22 the court held
that calling the appellant a slave was a grave insult amounting to provocation. Here for the spoken words to amount
to provocation it will depend on the prevailing circumstances.
3.1.4 Reasonable Man’s Test

Apart from the fact that the accused may have been provoked, the act of

causing the provocation must be such as to deprive of reasonable man of his self-

control.

Under the common law, it was first assumed that the objective concept of

reasonable man is a man on the clapam omnibus which could conveniently be

applied to the area of law. In the case of the test of a reasonable man in

provocation cases, the physiology of the accused was not taken into consideration

as it was the objective test that was used, which means that any unusually excitable

or pugnacious individual cannot rely on the defence for reducing the crime from

murder to manslaughter. If the alleged to be provocative would not have had the

effect on an ordinary man as it had on the accused.119

Thus in R. v Asuquo Eseno120 the wife refusal to prepare food for her

husband was held not to amount it sufficient provocation in a reasonable man,

standing, to reduce the killing of her by him from murder to manslaughter.

In Nigeria the courts have also held that the reasonable man must be

interested with at least some of the characteristics of the accused. In R. v John

Okoro121 Francis J. said:

119 Bedder v. DPP Supra; R, v Nwanjoku Supra.

120 (1960) 5 FSSC 50; R. v Rouben Enyl Supra
 In considering the degree of provocation it is my view
that this question must be judged from the part of
view of what would amount to provocation in the case
of an ordinary reasonable man of the same standing in
life and degree of civilization as the accused man, for
what might not be regarded as sufficient provocation
in the case considered as sufficient where it concerns
an uneducated and primitive peasant whose passions
would naturally not be so much under control as those
of the more educated person.

In applying the reasonable man test, Nigerian Courts appear to have limited

themselves to a consideration of the standards of civilization. In the case of Olubu

v State122 it was held that in determining what would be reasonable for a man in the

accused person’s states in life, no account should be taken of an accused physical

defects which may have made him more susceptible to the provocation offered. It

is submitted that there is nothing in the provisions of either the criminal or penal

code which prevents our courts from adopting the more liberal approach of the

English Courts in this regard.

3.1.5 Mode of Resentment

In considering this question, the courts take into account the nature of the
123
instrument with which the homicide was effected, and the nature of the act

result from the provocation.124 It has been well established under the English

121 (1942) 16 NLR 63 at 65.

122 (1944) 17 NLR 99 at 101
123 State v Mohammed (1969) 1 NMLR 269 the court took into account the fact that the dagger used by the accused

to Kanuri, was worn by has tribe as an ornament.

124 R. v Akpakpan (1956) 1 FSC
Common Law that not every trial provocation will amount to legal provocation for

the purposes of reducing killing from murder to manslaughter.

As a basic principle, the retaliation must be proportional to the wrongful act.

The act of violence done to the victim by the accused, which act is done in

retaliation for the wrongful act or insult must be proportionate to the said insult.

The reason is that the law recognizes human frailty but does not indulge ferocity.125

Also in Nomad v Borno N.A126 where the court was considering whether the

slight provocation offered by the deceased was commensurate with the death that

arose where the deceased who was about to leave her husband took with her some

clothes which he had brought for her, a struggle for the clothes ensued when she

refused to leave them at the request of her husband. She pushed the husband down

two times and he got hold of the stick, struck her twice on the head and she died. It

was held that the provocation was slight in proportion to the husband’s deed.

125 AG. for Ceylon v Pereira (1953) AC 200; per Lord Goddard. It is impossible to determine whether the
provocation was grave without at the same time considering the act which resulted from the provocation, otherwise
some quite minor or trbbb provocation might be thought to excuse the use of a deadly weapon”. In Hibbb Nigerian
case of Obayl v The State (1965) 1 All NLR 269 it was held that in determining this proportionality, the court must
consider the nature of the weapon or instruments used or the force applied as a mode of resentment; R. v Thomas
(1973) 7 C & p. 817.
126 (1954) 21 NLR 103
 The danger of the rule is that the court at times place to much emphasis on

the mode of retaliation as if this were determinative of the issue, whereas the main

factor for consideration should be the provocative act itself.

The correct position is that the issue of mode of retaliation, and proportionality is

not an independent rule of law but merely a piece of evidence relevant in helping

the court to decide whether the accused had completely lost control of himself or

was acting from other motives.

The position under the penal code is not different from that under the

common law and under the criminal code.

3.1.6 The Third Party and the Concept of Provocation

The retaliation done under the influences of provocation must be done on the

person who offered the provocation. The aspect of the law of provocation enjoins

the person who claims provocation to take his retaliation on the person who offered

the wrongful act or the insult. The reason for this position is that provocation as a

defence does not offer an excuse for indiscriminate vendetta. The “locus classicus”

on the point is the case of R. v Ebok,127 where the court stated that:

It would be stretching the law to a dangerous extent to say

that provocation from one person would justify the killing
of another.

127 (1950) 19 WLR 84

 Under the common law, reliance has been placed on R. v. Simpson128 for the

proposition that for an alleged act to be provocation, it must have been offered by

the person who was killed and not by a third party. Although it was argued in R. v

Davis.129 However, since the enactment of section 3 of the Homicide Act 1957, it

would appear that once there is evidence that the accused was provoked into losing

his self control it is irrelevant that he attacked someone other than the source of the

provocation.

On the other hand, quite contrary to the position under criminal code and

under the English Law, it is clear that provocation given by a person other than the

person killed cannot be sufficient under section 222(1) of the Penal Code to reduce

culpable homicide from one punishable with death to one not so punishable. Under

the section, if a man who can successfully plead provocation kills another person

by mistake or accident, such killing will be culpable homicide not punishable by

death.130

3.1.7 The Killing must involve Assault

The rule that the killing in provocation must necessarily involve an assault

has both historical and practical dimension to it.

128 (1915) 25 Cox 269, 11 Cr App R. 218

129
130 R. v Afonja Supra
The origin of the law of provocation itself was the excuse on compassionate

grounds for human infirmity in a violent age when men bore weapons for their

own protection. Thus, provocation was extended to assault and battery committed

by the deceased on the accused in circumstances other than falling out. Also, it is

difficult to imagine a non-assault case of provocation that would easily meet the

other requirement of the doctrine, such as loss of self control.131 The requirement

of assault is essential if the meaning of provocation in section 318 is contained in

section 283 of the criminal code which refers to an offence of which an assault is

an element. The definition of assaults in the code includes battery, so every killing

on provocation must involve an assault.132

131 Owoade, M.A. Law of Homicide in Nigeria (1990) p. 96— 97.

132 Okonkwo and Naish Criminal Law in Nigeria 2nd ed. (Ibadan: Spectrum Books Limited, 2005) p. 249.
 CHAPTER FOUR

THE SCOPE OF PROVOCATION AND ITS APPLICABILITY IN

NIGERIA

4.1 The Scope of the Defence

It would be necessary to determine how far reaching the defence

of provocation is. The questions therefore arising are:

(a) To what offences can the defence, be pleaded, either in

mitigation or complete defence

(b) How far is the law willing to accommodate provocation and

still protect the sanctity of life?

(c) Is there a reasonable relationship between provocation and

self-defence?

These questions are pertinent in the light of the meaning of the

word “scope” to include the range of activity. Thus the definition of

provocation will be resorted to in other to adequately examine the

issues raised.133 From the tenor of that provision, one gets a distinct

impression that the offence to which provocation is pleaded as a

defence must contain assaults as an element. It there follows that in

133 Section of the Criminal Code CAP C 38 LFN, 2004

offences like stealing, sedition, libel, the defence would not be

successful if pleaded. It is further suggested that the accused must

have lost his self control as a result of the provocation offered,

inducing him to assault the deceased. Inclusively, section 252 of the

Criminal Code defines assault as

A person who strikes touches, or moves or

otherwise applies force of any kind to the
person of another, either directly or indirectly,
without his consent, or with his consent, if the
consent is obtained by fraud or who by any
bodily act or gesture attempts or threatens to
apply for of any kind to the person of another
without his consent, in such a circumstance
that the person making the attempt of threat
has actually or apparently a present ability to
effect his purposes is said to assault that other
person, and the act is called an assault.134

The questions which arises from the foregoing are:

(i) Would a person be entitled to the defence of provocation where

the retaliation is carried out by poisoning,

(ii) Would the retaliation if done through an electrical

contrivance or mechanical object capable of projecting halt

or steam, amount to provocation.

134CAP C 38 LFN, 2009; which further states that the term applies force” includes applying heat, light electrical
force, gas, odour, or any other substance or thing. Whatever, if applied in such degree as to cause injury or
personal discomfort
 The only requirement in the defence of provocation is that

irrespective of how the retaliation is carried out, it must bear a

reasonable relationship to the degree of provocation offered and must

also be done in the heat of passion as stated in the case of R. v.

Green.135

In the light of question (ii) which is as to how the law strikes the

balance between the need to preserve the sanctity of life and the need

to recognize human frailties. This can only be appreciated by

reproducing the mechanics of provocation arising either though a

violent assault or through adultery. According to Glanville William 136

As to violent assaults; when an animal is

attacked emotions evidently corresponding to
what we know as fear and hate are released;
and these do not necessarily enquire the
animals reactions to what is strictly necessary in
self defence. If possible the aggressor must be
killed or disabled or atleast hurt to prevent the
threat being carried out on the present occasion
or renewed on a later one. If strong counter-
action is imprudent, the threatened animals
must attempt to flee, and confine itself to self-
defence are, in the animal world, apart of the
instinctive defence mechanism making for the
survival of the species. In humans the emotion
of fear is mainly associated with the increased
release of adrenalines to be released. The

135 (1955) 15 WACA 73

136 Physiology of provocation (1970, Criminal Law Review) 636.
 hormones fall to normal within twenty minutes
after the end of the stressful situation.

Thus, law’s insistence on the retaliation being done in the heat of

passion and before there is time for the passion to cool is justifiable. A

person therefore, who sets out to procure poison and finds the

opportunity to administer same to the person who offered him the

provocation would not be said to be acting in the heat of passion as

this is a clear distinction between killing due to provocation and cold

blooded murder or revenge.

As to the question of adultery if a man discovers another man in

the actual act of adultery with his wife, this is taken as sufficient

provocation to reduce manslaughter to his act of killing either his wife

or adulterer. 137
But this rule will not be extended to cover the case of

a fiancée or woman who is not married to the man. 138

4.2 Burden of Proof

The burden if never on the accused to establish a pleas of

provocation. Even the evidence discloses a possible defence of

137 R. v Greening (1913) 3 KB 846

138 R v Palmer (1912) 2 KB 26
provocation. The burden of proof remains throughout on the

prosecution to negate it and prove beyond reasonable doubt that the

prisoner did not kill the deceased in the heat of passion caused by

sudden provocation. 139

Some times, the accused may plead accident or self-defence and

he may not wish to plead provocation as well because, being in

inconsistent plea, it is bound to weaken it, if not to destroy the

alternative defences.140 In such cases, the law does not place the

accused in fatal dilemma, but requires the judge, if he is sitting with a

jury to direct the jury upon it, provided in either the case that the

evidence disclosed a possible plea of provocation fit to be considered

by a judge or left to a Jury. 141

The law on this point is clearly stated

by Lord Goddard in Kwaku Mensah v R142 where he said:

But if on the whole of the evidence there arises

a question whether or not the offence is
manslaughter only, on the gourd of provocation
as well as on in a way similar to the present,
more especially in that; the lien of defence
adopted was that the killing was accidental and
no attempt had been made at the trial to rely on
provocation. This ruling was expressly approved
by the House of Lords in Manicin v DPP. The

139 Chan Kan v R (1955) AC 206; R v Oshunbiyi (1961) All NLR 453
140 Owoade M.A. Law of Homicide in Nigeria, p. 102
141 R v Aforya (1955) 15 WACA 26, Apistae v State (1971) 1 All NLR 50
142 (1946) AC 83 at 91.
 reason for the rule is that on an indictment for
murder it is open to a jury to find a verdict of
either murder or manslaughter, but the onus is
always on the prosecution to prove that the
offence amounts to murder if that verdict is
sought.

A defendant who pleads provocation in defence to a charge of

murder bears an evidential burden to adduce evidence of the existence

of the provocation sufficient to satisfy the trial judge that the defence

is fit to be placed before the jury. It is one of the trial judge’s

important responsibilities to direct the jury on all defences which arise

on the evidence even if the defendant himself does not adduce any

evidence of the existence of that defence or perhaps even denies the

existence of that particular defence. The decision of the house of Lords

in R v Achott143 deals with how the evidential burden relating to the

defence of provocation. Might be discharged, the obligation placed

upon the trial judge where the defendant advances of a defence which

is inconsistent with the existence. Of provocation, and what sort of

evidence must exist in order to invoke the judges duty to leave the

defence to the jury. 144

143 (1997) 1 All ER 706

144 Simon Cooper, Provocation and the Evidential Burden (New Castle Book, 2000).
4.3 Defences in Provocation Cases

Generally several defences exist in provocation cases, however

these defence are:

4.3.1 Mistake

In the defence of mistake, there exists the reasonable man’s test

which is to the effect that the a reasonable man standing in life, but

the defence of mistake goes further to add that the accused will be

judged as liable on the facts as he believed them.

According to Glanville Williams, there is no objective test in

respect of mistke as it need not be reasonable. It has been stated that

an accused lacks legal fault if can prove that the lacked awareness if

the fact bringing him within the definition of an offence an that the

thought otherwise because he had made a mistake.

4.3.2 Self-Defence

Whenever self defence is pleaded on a charge of number it is

necessary to show that the nature of the attack by the deceased was

such as to cause a reasonable apprehension of death or grievous

harm. In R v Onyeamaizu, 145 before the defence of self-defence can

avail an accused or can lawfully be involved, three fundamental

principles must be established, viz:

(a) the defence can only be invoked against a person who is an

assailant or an aggressor

(b) the person attacked or assaulted or threatened with violence

by the assailant must be actual fear or belief or reasonable

apprehension of death or grievous harm.

(c)
The force used to repel the attack by the assailant but must be

proportionate to the force used in the attack. 146

Where a defence of self defence succeeds, the proper verdict is

that of not guilty and the accused person will consequently be

discharged and acquitted. Thus, self-defence affords a complete

defence.

From the foregoing, where the defence of an accused person is

one of self-defence, what it means is that the accused admits that he

did the act which resulted in the death of the deceased and was

justified in doing so to protect his own life because he was in the risk

145 (1958) NRNLR 93, Ekpe v State (1993) 7 NWLER pt 297 at 82.
146 Kanimu v State (1996) 7 NWLR pt 462 at 581
of imminent death and would have been killed or was in such fear

when he committed the act. 147

4.3.3 Intoxication

In Nigerian law, intoxication is provided for by section 29 of

Criminal Code. 148

By this section, there is the existence of involuntary

and voluntary intoxication.149 Intoxication is simply a condition of

being stupefied by alcohol or narcotics. When it is caused by alcohol

it is another term for drunkenness. 150

By virtue of section 29(2) 9a) of the criminal code, intoxication is

only a defence if it is induced by malicious or negligent act of another.

A self induced intoxication is no defence of intoxication. A defence of

intoxication does not avail a person where there was no evidence that

the person was drunk on temporarily insane at the time he committed

the offence as a result of the malicious or negligent act of another.

147 Ekpenyong v State 91991) 6 NWLR (pt. 200) 689

148 Section 44 of the Penal Code provides for only voluntary intoxication
149 Okonkwo and Naish Op cit pg. 149
150Imo v State (1991) 9 NWLR pt 213 at 115
 Intoxication is a question of fact which has to be established by

evidence. The burden of establishing the defence rest on the accused

person. 151

4.3.4 Accident

Under the Nigerian legal system, section 24 of the Criminal code

provides:

Subject to the express provisions of this code

relating to negligent acts and omissions,
person is not criminally responsible for an act
or omission, which occurs independently of the
exercise of his will, or for an event which
occurs by accident.

An accident is the result of an unwilled act, an event which

occurs without fault of the person alleged to have accused it. The

expression “an event which occurs by accident” used in section 24 of

the Criminal Code connotes an event totally unexpected by any

reasonable person. 152

Thus for an event to quality as accidental it

must be a surprise both to the doer of the act that caused it and a

151 Osakwe v AG Bendel State (1991) NWLR pt. 167 at 319

152 Asuquo Thomas v State (1994) 4 NWLR (pt. 337) 131.
surprise to all. An event is thus an accident if it is not objectively

foreseeable by the ordinary man of reasonable prudence.

Although it is recognized by the criminal code that accident is a

general defence in criminal law, it is not one of the traditional defence

to the change of murder. This is however not to say that, the defence

should not be considered where appropriate in a murder change,

indeed it can. The defence of accident, like all other defences,

presupposed that the accused physically committed the offence that

he should be acquitted because it was an accidental act.

4.3.5 Insanity

The term insanity is used mostly in countries of common law

tradition to indicate the general mental abnormality that affords an

exemption from punitive responsibility.

According to section 28 of the Criminal Code, 153

A person is met criminally responsible for an

act or omission of at the time of doing the act
or making the omission, such a person is in a
state of mental disease or natural mental
uniformity as to deprive him of capacity of
understand what he is doing; or of capacity to

153 Section 51 of the Penal cold provides for the defence of insanity.
 control his actions, or of capacity took now
that he ought not to do the act or make the
omission.

Insanity could be established by the following ways amongst

others:

(a) Evidence as to the past history of the accused

(b) Evidence as to his conduct immediately preceding the killing of

the deceased.

(c) Evidence from prison warders who had custody of the accused

and looked after him during his trial.

(d) Evidence of medical officers and/or psychiatrics who examined

the accused.

(e) Evidence of relatives about the general behaviour of the

accused and the reputation he enjoyed for sanity or insanity in

the neighbourhood.

(f) Evidence showing that insanity appears in the history of the

accused family, and

(g) Such other facts which will help the trial judge come to the

conclusion that the burden of proof of insanity paled by the

criminal code on the defence has been amply discharged.

 The law is that the onus of proof of the defence of insanity on

the person who pleads it, and it is discharged on a balance of

probabilities. The accused must prove that at the time he committed

the offence, he was actually insane within the conditions stipulated by

section 28 of the Criminal Code. 154

4.3.6 Automatism

Under the Nigerian Legal system, section 24 of the criminal code

provides a defence where an act or omission is independent of the

exercise of the will. At least this must mean that no one is liable for an

unconscious act. 155 When a man acts in a state of unconsciousness, he

is in English law to have a defence of automatism, and term which can

be defined as “unconscious involuntary action. 156

Which does not

result from a disease of the mind and which is a defence; because the

mind does not go with what is being done.

It has bee suggested that automatism, epileptic feet etc. must

be assimilated to the defence of insanity rather than living such

matters unregulated as they are presently. The border line which

154Oladele v State (1993) 1 NWL pt. 269 at 297, Nnabo v State (1994) 8 NWLR pt 361 at 178.
155Okonkwo and Naish, Criminal Law in Nigeria (Spectrum Law Publishing Nig., 1980), 174.
156 Batty v AG of Northern Ireland (1961) 3 All ER 523
automatism and insanity being more imaginary than real. Spasm,

reflects actions, convulsion and sleep walking are generally classified

as forms of automatism. 157

4.4 Applicability of the Defence of Provocation in Nigeria

In Nigerian criminal law, provocation is contained in tow codes,

that is the criminal code and the penal code, provocation is a ground

for reducing murder to manslaughter and this is its most important

function. A part from the fact that the accused must have in fact been

provoked, the act causing the provocation must be such as to deprive

a reasonable man of his self control, thus an ordinary reasonable man

is the standard for the test. The locus classicus was offered in Chukwu

Obaji v State. 158

Under the Penal code, provocation is no ground for exempting

one absolutely form criminal responsibility for his acts, but may be a

ground for funding him guilty of crime of lesser degree or for

mitigating the punishment. But it must be shown that there was

157 R v Ayindo 91963) 1 All NLR 393

158 Supra
absence of malice and force used as a mode of resentment bearing

reasonable relation to the provocation received. 159

Under the Criminal code however, provocation may constitute a

full defence to an assault. 160 Thus means that provocation under the

criminal code, can make up adequately for an assault, entitling the

offender to be set free unconditionally. But under the penal code

applicable in Northern Nigeria, provocation is a mitigating factor only.

In this connection a writer161 commented vividly on the stand of the

penal code. He said:

… It can therefore be seen that under the

penal code provocation in ever a complete
defence to a criminal change and even in
assault cases that most, it can do is mitigate
the punishment. The penal code‘s stand might
have been prompted by the legislators
attempt to be guided by principles of Islamic
law which hardly admits the defence of
provocation even in murder charge.

In Sadiku v The State162 it was held that even if provocation is

not raised by the defence, it is incumbent where there is evidence

indicating such a defence. Again where there is no evidence for

159 Section 318 of the Criminal Code CAP C38 LFN, 2004
160 Section 284 of the Criminal Code CAP C 38 LFN, 2004
161Chukkol K. S. Defence to Criminal Liability in Nigerian Law: A Critical Appraisal ats p. 77.
162 (1971) All NLR 519
consideration by the court of either the defence of provocation it is not

the law that the court must of necessity invent one so to desire a

defence for the accused person. It was however, held in the case of

Effiong v State, 163

that the burden of proof in the defrnce of

provocation within the Nigerian legal System.

4.5 Effect of a Successful Plea of Provocation

It is trite law that the defence of provocation, if successfully

pleaded, can only have effect of reducing, the punishment; from

murder to manslaughter recognized defence which has the effect of

whittling down the punishment stipulated for the offence committed as

in the case of murder, if satisfactorily established. 164

Thus, when a person who unlawfully kills another in

circumstances which but for the provision of section 318 of the

Criminal Code would constitute murder of caused by grave and sudden

provocation and before there is time for his passion to cool down he

is guilty of manslaughter. 165 Therefore, provocation is not regarded as

a ground for complete exculpation or a complete defence to criminal

163 (1998) 59 LRCN 394

164 Abdulrazaq, A. Daibu; A appraisal of Provocation as a defence to criminal Liability in Nigeria Publication of LSS
Unilorin.
165 Akintola Aguda, The Law of Evidence 4th ed. (Spectrum Books, 1999), p. 271
change, the most it can do is to mitigate, the punishment but no

amount of provocation can justify killing. 166

The significance of a successful provocation plea as an

extenuating ground is usually that if reduces murder to manslaughter,

despite the fact that the defendant intended to and did kill in anger.

The unique feature of provocation is that the plea may extenuate even

though it is accepted that, in killing the defendant was not seeking to

some himself from death or injury (as he or she would have been

doing, in a bona fide excusing duress case). 167

The unique feature of provocation cases makes it particularly

hard to understand why provoked killings are even partially excused

by reducing murder to manslaughter On possible explanation might

be that what really matters is the effect of anger on the defendant’s

mental state.

166 Abdulrazaq, A. D. The Jurist (2010) p.4

167 Jereny H. Reason for Anger, Response to Narayan and von Hiresh Provocation Theory.
 CHAPTER FIVE

CONCLUSION AND RECOMMENDATION

5.1 Conclusion

Provocation operates as a partial defence on the assumption that

provocative conduct is capable of raising in an ordinary person such a

degree of psychological pressure, in the form of angry passion, as to

deprive such a person of the ability to exercise rational control over

her actions.

The effect of provocation on the ordinary or reasonable man has

several aspect. However, the length of time elapsing between the

provocation and the killing, if it is proved that the accused had not

recorded has self-control when he acted. In considering the reactions

of an ordinary person, should the bad tempered man be treated in the

same way as the good tempered man; thus where lost of self-control

is proved then the provision of the law applies based on the laid down

standards. And in criminal law the test of the reasonable man indicates

an ethical standard.

The true view of provocating is that it is a concession to “frailty

of human nature” in those exceptional cases where the legal

prohibition facts in effect. Though it is established that even if the

defence is successfully pleaded, it does not exculpate the accused of

criminal responsibility, it only mitigate its punishment. However,

Nigerian Courts have succeeded in evolving a slightly different

approach in determining whether or not a person has been provoked

and the test now applicable is the partially objective test.

5.2 Recommendation

The defence of provocation must be considered under the

Nigerian codes. However, the requirements placed on the defence of

provocation are so tasky, and we wonder if an accused person can

actually have the defence avail him, especially the reasonable man’s

testing and mode of resentment which actually contradict, thus

necessary reform is to be done it his regard.

Again all forms of technicalities of determining who a reasonable

man is should be abrogated, but the examination of when self control

was lost is recommended as well as the interpretation given to the

phrase “ the effect it would be expected to have on a reasonable man

in the accused person’s situation in life”.

 The proportion rule of retaliation is detrimental to the accused.

Where the happens to be armed at the time the provocation is given to

him, he would not normally step to think whether to use many of his

fists in retaliation or to use any of the several weapons at his disposal.

Therefore, the proportionality rule in Nigeria should be modified and

not be excluded. Sine it will be contrary to pubic policy.

The law seems to have been applied in favor of aggrieved

husbands who kill their wives upon the slightest suspicion of adultery.

The law should importantly recognize inflagrante delicto cases of

adultery too.

The court should in determining whether there has been enough

cooling time, take into account the degree of provocation offered. Also

the physical peculiarities of the accused such as his age, sex, physical

and mental disabilities as well as emotional condition should be taken

into account.

The defence of provocation should be extended to cover offences

like defamation and making damage to property. 168 Since the defence

of provocation is the sole concession to loss-self control by persons

who are not classified as mentally disordered, one would suggest that

168 Augda t. A. principles of Criminal Liability in Nigeria Law, P. 318 – 319.

not every human frailty should be taken in to account. The law should

aim to regulate human behaviour and demand a high standard of self

control in considering the defence of provocation, the evolution of

society must be considered; social habits and feelings have to be

taken into account.

It is recommended that a prudent approach to be adopted in

Nigeria is to exclude all those common law notions explicitly provided

for in the local statutes because the logic behind many of them is more

apparent than real as well as the unification of some relevant sections

that provides for the defence of provocation. 169

169A safer way is to draft all these section; Section 283, 284, 218 244, 265 and 266 of the Criminal Code into one
section in the relevant codes to enhance understanding and interpretation.
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