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

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

 

 

THE DEFENCE OF PROVOCATION: A MITIGATING

FACTOR IN HOMICIDE CASES IN NIGERIA

 

 

 

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

• 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 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 Act[3] 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 State[4] held that section 318 of the Criminal Code Act[5] should be read alongside with section 283 of the Criminal Code Act[6] . 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 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 Duffy[7] 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 book[8] provide a comprehensive and authoritative coverage of the concept. Smith and Hogan[9] 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.

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’2[12] 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 Abubakar[13] 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.

Card, Gross and Jones[14] 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 Jefferson[15] 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 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’6[16] 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 Quinn[17] , 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.

 

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.

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 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 KingsleyOghor v. State[25] 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…

 

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. State[26]  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]

The World Encyclopedia vol.9 defines homicide as the killing of one person by another. Thus homicide can be lawful[30] or 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]

 

 

 

[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.

[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

 

[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.

 

[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. 2^nd  (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.

[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.

 

[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

[18] M. A. Owoade, Law of Homicide in Nigeria. 2nd ed. (Ile-Ife Obafemi Awolowo University Press, 1990), p.70—103.

 

[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

[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.

[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.

[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.