LAW REVIEW SERIES II: PROVOCATION AS A MITIGATING ELEMENT IN MURDER CASES IN NIGERIA.

This is a continuation of the Law Review Series on Provocation which attempts to lucidly elucidate some misunderstood aspects of the defence of provocation in murder cases, especially in light of recent decisions of the Supreme Court. For Part One of this series, kindly click here.


PROVOCATION AS A MITIGATING ELEMENT IN MURDER CASES IN NIGERIA: SHANDE V. THE STATE [2005] 40 WRN 145; [2005] 12 NWLR (PT. 939) 301, RE-VISITED– by Collins Ogonnaya ARIKOR.

 

PROVOCATION DEFINED

The provision in section 318 Criminal Code Act which provides for the defence of provocation does not attempt to define what was meant by provocation, hence the need to look at other authorities for a definition.

In Obaji v. The State,[1] the Supreme Court, after considering whether the meaning of provocation as provided by section 318 of the Criminal Code could be found in section 283 of the Criminal Code or in the common law held that sections 283 and 318 must be read together for a proper and deeper understanding of the term. Provocation was explained in section 283 of the Criminal Code Act[2] to mean any act used with reference to an offence of which an assault is an element, and which includes 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 his immediate care, or to whom he stands in 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, and when such act or insult is done or offered by one person to another, or in the presence of another person who is under his immediate care, or any person whom he stands in any such relationship as mentioned, then the former is said to give the latter provocation for an assault.[3] Simply put, provocation implies that in the event that a person is insulted or assaulted, or such person sees a person he stands in a parental, marriage or other personal relationship with being insulted or assaulted, and he loses his power of reasoning, he is said to be provoked. Provocation was further afforded a judicial interpretation in R v. Duffy,[4] wherein it was explained, inter alia, to mean: some acts done by the dead man to the accused which will cause any reasonable person and actually caused in the accused a sudden and temporary loss of control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.[5]

The definition given in the Criminal Code Act reveals the fact that the law takes into cognizance the peculiarity of human beings to lose self-control under extreme rage and intense emotions. And should they exhibit irrational acts as a result of this loss of self-control, justice demands that account be taken of this natural phenomenon of theirs in meting out punishment. That is why section 284 of the Criminal Code Act provides thus:

“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.”[6]

 

[1] [1965] 1 All. N.L.R. 269.

[2] supra.

[3] ibid. Emphasis added. Words not in the original.

[4] [1949] 1 ALL ER 532.

[5] ibid, at 534.

[6] ibid.

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