PROVOCATION AS A DEFENSE TO CRIMINAL LIABILITY

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 defenses. The defense 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 defense 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 defense 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 defense of provocation can avail a person, the test to be applied is to see what effect the act or series of acts of the deceased would have on a reasonable man, so that an unusually excitable person will not be able to rely on it as a defense 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 defense 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 defense.

1.3 Research Question

The defense 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 defense 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?

4. Under what circumstances would the pleas of provocation be successful as well as the fundamental element of the defense 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 defense as well as the relevance of the characteristics of the offer and the proportionality requirement in the objective test of the defense.

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 defense are recognized and can make a useful contribution to the continuing moral debate that the partial defenses to crime such as murder generate as well as to be able to appraise the disposition of the court towards the defense.

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 another 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 defense 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 provocation as a defense to criminal liability, this research project 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 defense as well as its elements.

(c) To examine the burden of proof, the effect, adequacy and limitation of the defense and to suggest or make recommendations on the defense if there is any

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