INGREDIENTS OF

PROVOCATION
UNDER NIGERIA
LAW [CRIMINAL
CODE AND PENAL
CODE] A person who
causes the death of
another person commits
a grave offence and a
serious felony under
common law, and there
is no defense available
to such a person.
However, it soon
became clear that there
is a rebuttable
presumption that nearly
every common law
criminal (offense) need
sufficient proof of a
guilty mind.Generally,
the presumption of the
law is that a man
intends the natural
consequences of his
act.The canal principle
of criminal law of
intention as it is in the
legal maxim"actus non
fact reum nisi men sit
rea"which means an act
does not make a person
legally guilty unless the
mind is legally blame
worthy. The law states
that if a person kills
another in
circumstances that
would be considered
murder if not for the
provisions of the section,
it is considered murder.
There are several types
of unlawful killing that
aren't considered
murder. "Any person
who unlawfully kills
another in such
circumstances as not to
constitute murder is
guilty of manslaughter."
- Section 317 of the
criminal code.
Manslaughter can be
voluntary or involuntary;
involuntary
manslaughter refers to
situations in which the
purpose is not to murder
or hurt others.Voluntary
manslaughter on the
other hand occurs when
a person intentionally
kills another but the
offence is reduced from
murder to manslaughter
because of provocation.
The Criminal Code
defines provocation and
the defense against
provocation.
Provocation as a
defense in criminal law
is essentially an
acknowledgment to
human weakness. The
law recognizes that
individuals might be
driven to the breaking
point and overtaken by
such intensity that they
lose control of
themselves at the
moment they are
provoked and react to
that provocation, and
we forgive them for that
temporary weakness
because, after all, we
are human with feelings.
The classic common law
definition for
provocation comes from
Devlin J inR v. DUFFY
[1949] 1 All ER 932:
"Provocation is some
act, or series of acts
done ... which would
cause in any reasonable
person and actually
causes in the accused, a
sudden and temporary
loss of self-control,
rendering the accused
so subject to passion as
to make him or her for
the moment not master
of his or her mind."
Everything Devlin J told
the jury in R v Duffy has
been entrenched in
legislation to a
significant extent.
Provocation has three
major elements,
regardless of its form.
For starters, it
necessitates a brief and
unexpected loss of
self-control. This
feature of provocation
has been problematic in
recent years,
particularly with
domestic homicides,
since it has been
criticized as a
stereotypically
masculine response to
provocation. Another
element is that there
must also be prove that
there must have been a
provocative act.
Proportionality (if the
accused's reply was
proportional to the
provoking conduct) is
the third element of the
defence.

"The term provocation

as used with reference
to an offence of which
an assault is an element,
includes, except as
hereinafter stated, any
wrongful act, or insult of
such a nature as to be
likely when done to an
ordinary person or in the
presence of an ordinary
person to another
person who is under the
immediate care, or to
whom he stands in a
conjugal, parental, filial,
or fraternal, relation, or
in the relation of master
or servant, to deprive
him of the power of
self- control, and to
induce him to assault
the person by whom the
act or insult is done or
offered. When such an
act or insult is done or
offered by one person
to another, or in the
presence of another to
a person who is under
the immediate care of
that other, or to whom
the latter stands in any
such relation as
aforesaid, the former is
said to give to the latter
provocation for an
assault. A lawful act is
not provocation to any
person for an assault.
An act which a person
does in consequence of
excitement given by
another person in order
to induce him to do the
act, and thereby to
furnish an excuse for
committing an assault,
is not provocation to
that other person for an
assault. An arrest which
is unlawful is not
necessarily provocation
for an assault, but it
may be evidence of
provocation to a person
who knows of the
illegality." -Section 283.
To put it another way,
an unlawful act or insult
directed against a
person, their spouse,
parents, children, or
other relatives might be
considered provocation,
leading to an assault on
the person who
committed the unjust
act or insult. Section
284 of the Criminal
Code codifies the Three
Main Elements of the
defence of provocation
stated above, as follows:
1.Provocative Act.
2.Loss of Self Control.
3.Proportionality of
Reaction. The defence
of provocation can
succeed only if the
effect of abuse or insult
would cause a
reasonable man to lose
his self-control and also
that the accused did
actually lose his
self-control consequent
upon the provocation. In
criminal law, words
alone may not amount
to constitute
provocation. But the
court has held that that
in some particular cases
they can. Much would
depend on the words
used and what they
mean, having regard to
the custom or
background of the
person son whom the
words are used. The
Supreme Court of
Nigeria in the case
ofWOWEM v. STATE
(2021)
LCN/4956(SC,held that
to successfully raise the
defence of provocation,
he must show clearly the
fact of the provocation
to enable the Court
determine how much he
was provoked. Secondly,
he must show that he
acted in the heat of
passion and that the
provocation was enough
to deprive him of
self-control. The
provocation must be
grave and sudden and
must be such as to take
away from the accused
the power of self control;
and thirdly, he must
show a relation which is
proportionate to the
provocation by the
deceased.
PROVOCATIVE ACT
The question that
comes to mind what is
provocative act and
what constitute
provocative act?
Section 283 provides
the answer to this
question; "...any
wrongful act, or insult of
such a nature as to be
likely when done to an
ordinary person or in the
presence of an ordinary
person to another
person ... to deprive him
of the power of self-
control, and to induce
him to assault the
person by whom the act
or insult is done or
offered." Another
aspect of provocative
act is whether
confession of adultery
consist a provocative
act. The Common Law,
on the other hand, has
usually been
sympathetic to the
husband who discovers
his wife in adultery and
murders her or her lover,
or both. The belief that
adultery was an invasion
of the husband's
ownership interests in
his wife colored the
Common Law's early
forgiving stance toward
the husband in such a
situation. As a result,
the law's leniency was
limited to cases in which
the criminal and the lady
he killed had a strict
legal marital relationship.
What does the discovery
imply? Is it more
accurate to say that the
wife and the adulterer
were discovered in
flagrante deflector, or
that they were
discovered in
circumstances that
suggested adultery? In
the East African case
ofCHACHA S/O
WAMBURU v.REGINAM
[1953] 20 EACA 339, the
court held that it is not
necessary that the wife
and the adulterer should
be caught during the
actual period of
intercourse, but if they
are found together in
circumstances from
which immediate recent
intercourse is and can
safely and correctly be
inferred, they may be
said to be found in the
act of adultery within
the meaning of the rule.
In this connection
professor Chukkol
observes: "When it is
said that one's finding
his wife committing
adultery constitute
provocation sufficient to
reduce a conviction of
murder to manslaughter
it is not thereby implied
that one must meet his
wife and the male
intruder belly-to-belly
(i.e. in the actual act of
intercourse)." In the
case ofMATTHEW
AHUNGUR v. THE
STATE (2012) 12 N. W. L.
R. pt. 1313 at P. 194, the
Nigerian Court of
Appeal, on when
provocation will not
constitute defence in
murder cases ruled as
follows: Where a
husband already has
knowledge of the
unfaithfulness and
sexual immorality of his
wife with another man
and she has indeed
deserted him, seemingly
exercising her right as
to whom to associate
with, which is a matter
of conscience and
principles, and he kills
that other man
subsequently,
provocation as a
defence is not available
to him. His act would be
brutal
murder because there
would be nothing
sudden in the
provocation to deprive
him of self-control. In
the instant case, the
defence of provocation
set-up by the appellant
failed and the
prosecution established
a case of murder
against the appellant. In
the instance of adultery,
the husband is required
under Islamic Law to
present four witnesses
who can provide
compelling proof that
they saw both the wife
and the adulterer in the
actual act of intercourse,
i.e. in flagrante delicto.If
he discharges this
burden of proof, Sharia
law will punish his wife
(i.e. by stoning to death).
However, if he kills her
on his own, it will be
considered intentional
killing because the
defense of provocation
is not accepted under
Islamic Law. Generally
the court says that mere
words do not amount to
provocative acts.
InKALGO v. STATE(2021)
LCN/4961(SC), at Kalgo
Town, Kalgo Local
Government of Kebbi
State, a group of
hunters, including the
Appellant and one
Mohammed Bandi, went
on a hunting, expedition,
and a fight broke out
over bush meat.
Offended by what
Mohammed Bandi said
to him during the fight,
the Appellant used an
axe to inflict injury on
Mohammed Bandi's
head. Mohammed Bandi
was first taken to a
Hospital in Birnin Kebbi,
and was later
transferred to the
UniversityTeaching
Hospital, Sokoto, where
he died twelve days later.
The Appellant was
arraigned before the
High Court of Kebbi
State and charged with
the offence of culpable
homicide punishable
with death. After a trial
in which four witnesses
testified for the
Prosecution, and he
testified in his own
defence, the Appellant
was found guilty and
was convicted and
sentenced to death.
LOSS OF SELF
CONTROL This
ingredient of
provocation must be
satisfied before the
defence of murder case
can avail the defendant.
In ascertaining whether
this ingredient is
sustainable, an
objective test must be
carried out by the court,
the objective test is
upheld to show whether
a reasonable man in the
place of the defendant
would be provoked by
the act of the deceased.
In the case ofEGBE v.
STATE(2020)LCN/14324
(CA)the court of appeal
held that for a defence
of provocation to
succeed, the act which
causes provocation
must be grave and
sudden and must be
such as to deprive the
accused the power of
control. The act which
causes the death of
deceased must have
been done in the heat of
passion caused by
sudden provocation and
before there is time for
passion to cool. Section
26 of the Criminal Code
Law provides that:
"Subject to the express
provisions of the Code
relating to acts done
upon compulsion or
provocation or in self
defence, a person is not
criminally responsible
for an act done or
omission made under
such circumstances of
sudden or extraordinary
emergency that an
ordinary person
possessing ordinary
power of self-control
could not reasonably be
expected to act
otherwise." Under
section 222(4) of the
Penal Code in order to
sustain the defence of
sudden fight is that the
accused must have
been suddenly provoked
by the deceased and the
provocation must have
led to an instant fight
leading almost
immediately to the
death of the deceased
in the course of the fight.
Therefore in the case
ofKAWU v.
STATE(2020)LCN/14273
(CA)the Appellant has a
bounden duty to lead
credible and convincing
evidence upon which he
can rely on for the
defence. However, he
can also take advantage
of other pieces of
evidence before the
Court that can
encapsulate a defence
of "sudden fight in the
heat of passion upon a
sudden quarrel and
without the offender
having taken undue
advantage or acted in a
cruel or unusual
manner." In the case
ofMANU GALADIMA v.
STATE(2012) 18 NWLR
(Pt. 1333) 610, E-H &
A-B, Galadima, JSC
held:"Provocation by
nature must involve
some acts or series of
acts done by the
deceased person to the
accused/appellant
which would cause a
reasonable person and
actually caused the
accused, a sudden and
temporary loss of self
control, rendering the
accused to be subject
or under such violent
rage as to make him or
her for the moment not
to be in control and
master ofhimself. The
appellant who did not
provide for any evidence
in support of the
defence he raises
cannot, as in the case at
hand, be given the
benefit of the defence.
The Court can only
consider defences
which are supported by
evidence before it
without which there is
nothing to assess the
veracity thereon. The
proof is a matter of
fact... The accused has
the onus of adducing
credible and positive
evidence to support the
plea of provocation
raised. Where the
accused/Appellant had
failed to adduce such
evidence as it is with the
present case at hand,
the trial Court has to
rely on the evidence
before it as adduced by
the prosecution."
PROPORTIONALITY OF
REACTION Another
ingredient of the
defence of provocation
which an accused
person must prove
together with those
earlier discussed is that,
the mode of resentment
was proportionate with
the act of provocation
offered. The only
statutory authority for
this rule in Nigerian
criminal law can be
found in section 284 of
the Criminal Code which
states that: "A person is
not criminally
responsible for an
assault 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 his 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."
Provocation which may
cause a reasonable
person to retaliate with
a slap on the face i.e.
excuse as assault may
not reduce the murder
to manslaughter where
the accused severely
batters the offender to
death with a deadly
weapon. But if a man
who is provoked
retaliates with a blow
from his fist on another
grown man injury may
well be considered and
probably would, that
there was nothing
excessive in the
retaliation even though
the blow might cause
the man to fall and
fracture his skull, for the
provocation might well
merit a blow with the fist.
In the case ofBAWA v.
STATE (2020)
LCN/14792(CA), the
defendant raised the
defense of provocation
in his confessional
statements that the
deceased inflicted injury
on his ear which the trial
Judge also alluded to,
but that the trial Judge
came to the conclusion
that the degree of pain
or hurt felt by the
Appellant is
incommensurate to his
instantaneous revenge
by using a wood plank
on the deceased's head
and neck and that this
calls for questioning.
The element of
proportionality of
reaction will avail the
defendant only under
the test of a reasonable
man i.e. what would a
reasonable do in such a
situation. In the case
ofSTATE v.
AHMED(2020)
LCN/4908(SC),On the
defence of provocation,
the trial Court found
that it was the case of
the respondent that
when the deceased
refused to relocate in
the river side, he pushed
him away and the
deceased took a stone
and threw it at him
which hit him on the
head. He then went for
his knife from his
furniture tools bag and
stabbed the deceased.
The Court found that
the action of the
respondent in stabbing
the deceased with a
knife on the armpit and
stomach was in excess
of that of a reasonable
man in the circumstance.
InNJOKU v. THE
STATE(2013) vol. 222
LRCN (pt.2) 219 at 254
para A - F, howeve