provocation

The defence of provocation is provided in two different Sections of the Crimnal Code Act (S. 285 – as it relates to the offence of assault, and S. 318 – as relates to homicide).

It presents an excuse for a defendant being accused of a wrongful act of assaulting or killing another. It is about saying that despite the fact that the accused did the act intentionally, he should be excused on the grounds of the wrongful act or insult done to him, or done in his presence to another person in very close relationship with him (such as conjugal, parental, filial, or fraternal) that so incited or induced him to so much anger and into doing, in the very spur of the moment, the unlawful act of which he is being charged. That is, that extreme anger robbed him of his sense of rationality, control and responsibility. CHUKWU V. STATE (1991) 1 NWL (PT.217) 255, AFOSI V. STATE (2012) ALL FWLR (PT 612) 1723.

When successfully pleaded in a charge of assault, the accused will be exonerated, discharged and acquitted. Because no level or measure of provocation can ever justify one killing another, all an accused can secure who successfully pleads the defense of provocation in a charge of homicide is getting convicted for the lesser offence of manslaughter, not discharge and acquittal. SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR

To successfully plead the defence of provocation, the defendant must show that he did the act for which he is charged thus:

a) In the heat of passion;

b) The act must have been caused by sudden provocation;

c) The act must have been committed before there was time for passion to cool; and

d) The mode of resentment or retaliation must be proportionate to the provocation offered.

These four requirements must co-exist before the defence can succeed. AFOSI V. STATE (2012) ALL FWLR (PT 612) 1723; SHANDE V. STATE (2004) ALL FWLR. GALADIMA V. STATE (2017) ALL FWLR (Pt. 904) 1114 SC. SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR

No, they are virtually the same in legal essence. In the case of OBAJI V. STATE (1965) 1 ALL N.L.R 269 the Supreme Court held that they are to be read together. Notwithstanding they relate to the offences of assault and homicide, respectively, the ingredients – offensive act done to one or to another with whom one has a special relationship, extreme anger and loss of self-control, instantaneity, loss of reasoning power - are the same. SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR

A plea of the defence of provocation would not avail this man because he did not act in the heat of the passion of anger caused by the provocation. The time between when he was provoked and when he struck denied him that ingredient of loss of reasoning and rationality as the time lag provided him a cooling off period within which he should have sought justice or ‘revenge’ through lawful means. The generalization of his tribe as people who naturally harbour anger for long before striking will not be accepted by the Court. The defence of provocation failed the accused in **R. V. IGWE (1955) 15 W.A.C.A. 73 **who being provoked, went to his house, several kilometers away, collected a machete and came back to kill the deceased. It was easily held that the cooling off period denied him the defence of provocation. See also UWAGBOE V. STATE (2008) NWLR (Pt. 1102) 621 SC. DADA V. THE STATE (2017) HELAR; SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR; GALADIMA V. THE STATE (2) (2017) HELAR.

Not at all. While it is agreed that it is legitimate to consider the alleged provocative act against the background of the community or society or religion or class of education of the accused, it is not legitimate to consider whether, in general, members of that community, society, religion or class of education, are more easily angered than members of another such class. In IBANGA V. STATE (1983) A.N.L.R. 30 the Supreme Court rejected the submission that the Abak people are more easily angered that members of other tribes. See also LADO V. STATE (1999) 9 NWLR (Pt. 619) 369 where the Supreme Court held that the social and educational status of the accused person are such that the deceased letting in his cattle into the farm of the accused to destroy his crops and plants was sufficient provocation. Each case is judged on its own merit. GALADIMA V. THE STATE (2) (2017) HELAR.

Okonkwo & Nash, in their famous book, Criminal Law in Nigeria, 3rd Edition, at page 259 answered this question in this not-too-simple way, thus: “In deciding whether the provocation was sudden, previous wrongful acts and insults by the deceased are not sufficient because they do not supply the requirement of suddenness. Yet, if the deceased subsequently does another wrongful act to the accused which appear trifling, it is legitimate to take into account the previous provocative acts in order to determine whether the last wrongful act amounted to sufficient provocation. The final wrongful act or insult might, of itself, be comparatively trifling, but when taken with what had gone before, might be the last straw in a cumulative series of incidents which finally broke down the accused’s self-control and caused him to act in the heat of passion, The cases of MEHEMET ALI V. R. (1957) W.A.L.R. 28 and R. v. AHLUWALIA (1993) Crim. L.R. 63 were cited as having adopted the earlier decisions in R. v. Duffy (1949) 1 ALL E.R. 932, and Greyson v. R. (1961) R. & N. 337. SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR; GALADIMA V. THE STATE (2) (2017) HELAR.

The full details of the circumstances of the case of THUKU (alias Nyaga) v. REPUBLIC (1965) ALL E.R. 496 can very well explain the answer by the learned Professors quoted above.

Yes, the resentment and reactive action or hitting back by the accused must be somewhat proportional to the provocative act. The character or nature of the person that did the provocative act (e.g. a child, a woman, an old person) and the instrument or weapon of attack (e.g. knife, gun, stick) all would have bearing on what would be held as a reasonable reaction to the provocation. See R. V. BROWN (1972) 2 Q.B. 229 @ 232; OLADIRAN V. STATE (1986) NWLR (Pt.) 75. In the case of PHILIPS V. R (1969) 2 A.C. 130 where the Counsel for the accused argued that “…once a reasonable man had lost self-control his actions ceased to be those of a reasonable man and that accordingly he was no longer fully responsible in law for whatever he did” was rejected. In rejecting that submission of the defence Counsel the Court had said, inter alia, at pages 137-138 that “This argument is based on the premise that loss of self-control is not a matter of degree but is absolute…The average man reacts to provocation according to its degree with angry words, with a blow of the hand, possibly if the provocation is gross and there is a dangerous weapon to hand, with that weapon”. In R. V. ADELODUN (1959) W.N.L.R. 114 the action of the accused whose cousin lost an election he contested against another candidate and who was so enraged by the jubilation and celebration songs and dancing of the family members and supporters of the victorious Candidate which he, the accused saw as mocking of his own family that he, in reaction, inflicted 10 machete cuts on the deceased, was held to be totally out of proportion to the provocation that could have been caused by the celebrating group. AHUNGUR V. THE STATE (2018) HELAR; DADA V. THE STATE (2017) HELAR

No. Provocation by a person cannot be a justification, excuse or defence for killing another person who had no hand or played any part in the provocative act. There can be no transferred aggression in the matter of raising the defence of provocation. See STATE V. ENABOSI (1966) N.M.L.R. 241; R. V. EBOK (1950) 19 N.L.R.84. AZUOGU V. THE STATE (2018) HELAR

The test applied is the one of a Reasonable Man. The whole attention is not focused only on how the accused person reacted, but on how a reasonable man would have reacted. See GALADIMA V. STATE (2017) ALL FWLR (Pt. 904) 1114 SC. GALADIMA V. THE STATE (2) (2017) HELAR

No. It is not in every charge of offence that the defence of provocation can be successfully pleaded by the accused person. Where the unlawful act charged involves death or grievous harm, the defence of provocation would not be available to the defendant to the extent of acquittal no matter how provoked and how closely he is related to the person the harm or insult that caused the provocation is being done to. See SECTION 284 OF THE CRIMINAL CODE ACT CAP, C38 LFN 2004. If successfully pleaded the defence of provocation will cause the accused to be convicted of the lesser offence of manslaughter. See Section 318 of the CCA. SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR

The defence of provocation will succeed in this circumstance if all the elements and requirements of provocation are satisfied. See R. V. EKPO (1938) 4 W.A.C.A. 110; DUMMEMI V. R (1955) 15 W.A.C.A. 75.

Provocation as a defense will readily avail a person who commits an offence of which assault is an element because of the fact that due to the harm or insult being done in his presence to another person who is under his immediate care, or to whom he stands in a conjugal, parental filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person who is doing the act or insult is done or offered. See SECTION 283 OF THE CRIMINAL CODE ACT CAP C38 LFN 2004. GALADIMA V. THE STATE (2) (2017) HELAR; SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR

As rare as this may appear, it could very well so happen. In such a proven situation, the defence of provocation will fail. That is why it must be established that not only that such an act can provoke a reasonable man so sorely, it must also be proved that it did indeed so provoke the accused person. SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR

No. The reasonable man for this purpose has been held to be a reasonable man in the class and station in life and the standard of civilization of the accused person. So, the educational level, societal and cultural type and status of the accused person will be weighed in when evaluating the circumstances. In RUMA V. DAURA (1960) 5 F.S.C. 93 the Court held the act of a woman likening a Muslim man to a dog as being capable to stir provocation, even where such would not have had same effect on a Christian fellow. GALADIMA V. THE STATE (2) (2017) HELAR

No, there is no standard fixed period to be applied by Courts. It depends on the particular circumstance of both the nature and gravity of the provocation. Some provocations can actually be sort of ‘continuing’ provocation. The Courts have come to seem to be applying the rule of the more grievous the provocation the longer time they tend to calculate for what they will consider as time enough for the anger passion to have cooled off. See THUKU (alias Nyaga) v. REPUBLIC (1965) ALL E.R. 496. SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR; GALADIMA V. THE STATE (2) (2017) HELAR.

Yes, the reaction to the provocation envisaged by Section 283 of the CCA, which the Supreme Court, in the case of OBAJI V. STATE (1965) 1 ALL N.L.R 269, said must be read together with Section 318, is the one of physical assault. Though the words of Section 318 of the CCA do not exactly mention assault, the Nigerian Courts seem to have imported that linkage from the English law.

Reading physical assault into Section 318, whether by the communal reading of same with Section 283 of the CCA which begins with “The term ‘Provocation’ used with reference to an offence of which assault is an element…” of which it was held “defines provocation for the purpose of Section 318” (see Obaji’s case above) or by the importation of English law, appears to me to be a reasonable and natural thing to do as it is only by physical assault reaction that the instantaneity and spontaneity elements requirements (that would make it the accused did not have the cooling off period), can be supplied.

Yes, words alone have, as a matter of fact, been severally held to be sufficient to stir provocation that could will serve as a defence to a charge of murder. Still, so much will depend on the words spoken and the contextual and circumstantial purport. The old position as expressed in HOLMES V. D.P.P. (1946) A.C. 588 and in R. V. ADEKANMI (1944) 17 NLR 99 @ 101 was that word alone “save in circumstances of extreme and exceptional character” could not amount to provocation. Words alone that are sufficiently provocative and so inflammatory can cause provocation that can serve as defence capable of getting a reduction of conviction for murder to manslaughter. In R. V. AKPAKPAN (1956) 1 F.S.C. 1 @ 2 the Federal Supreme Court (as it was then called) said:

                                    *"We do not, however, agree with the learned trial judge that words alone can never constitute such provocation as to reduce an offence from 
                                     murder to manslaughter” * 

Of course, in considering the nature of words that can be sufficient provocation, so many things about the purport and the circumstances would have to be weighed. For instance, the culture of pride of men of a place when it has to do with their sexual impotency, taunting confession of adultery, derision of some person’s religious beliefs, who said it to who, civilization and primitivity of the accused, etc. etc. SIMEON V. THE STATE (2018) HELAR; ABUBARKAR V. STATE (2018) HELAR; EKEOZOR V. THE STATE (2018) HELAR; GALADIMA V. THE STATE (2) (2017) HELAR.