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

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.

INGREDIENTS OF PROVOCATION

Flowing from the definitions given in sections 283 and 284 of the Criminal Code Act, the following conditions must be met for a plea of provocation to succeed:

  1. That the reaction of the accused person was proportional to the provocation offered.
  2. That the reaction of the accused person was instinctive or instantaneous. That is to say, there must not have been time for his passion to cool.
  3. That the provocation was such as to deprive a reasonable man of the power of self-control.
  4. That the provocation was not sought or voluntarily induced or contracted by the accused person.

In Oladipupo v. State [1993] 6 NWLR (pt. 298), the above conditions were expanded upon by the Supreme Court, with the court coming to the conclusion that the whole essence of the defence of provocation is that the accused person suffered a sudden and temporary loss of sanity. But the longer the period between the Provocation was further afforded a judicial interpretation in R v. Duffy [1949] 1 ALL ER 532, 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. The longer the length of time between the provoking act and the consequent response, the weaker the cogency of the defence.

It is of utmost importance to deal substantially at this point with the four ingredients for a successful plea of provocation listed above.

Under the first condition, that is to say that the reaction of the accused must be proportional to the provocation offered, it is the view of the courts that no amount of provocation can ever justify a killing. This then makes the court to take into consideration the nature of the instrument used to repeal the provocation, and the nature of the act resulting from the provocation.

Where the reaction is considered by the court to be excessive, the plea of provocation apparently would fall like a pack of cards. An example of a case where this condition was well illustrated is the case of Nomad v. Bornu Native Authority (1954) 21 N.L.R. 31, where the accused’s wife, due to some domestic disagreements with him wanted to leave the matrimonial home. While leaving, she wanted to take some property which he bought for her, to which he objected. The wife refused, too. In the ensuing scuffle, the accused hit her with such a force as to kill her. The court had no difficulty convicting the accused of murder, and it further held that even if the deceased had given the accused any provocation, the excessive force used on her as to kill her was not proportionate to the provocation given. No doubt that the reasoning governing the rule of proportionality emanated as a result of the courts taking the view that even if a provocation may excuse an assault, it may never excuse murder.

Professor Okonkwo submits that there is an inherent problem with this principle of proportionality by submitting that the courts might place undue emphasis on the nature of the acts resulting from the provocation rather than the provocation itself since the rule was not expressly provided for in the Criminal Code.

That, however, appears not to be the true position of the law today. In providing for the defence of provocation, Section 284 of the Criminal Code Act, expressly gave a proviso that the force used to repel the assault must not be disproportionate to the provocation offered. The only problem is that the Act applies wholesale only to the Federal Capital Territory, Abuja, while states have their own different criminal laws. But this writer is most confident that the contents of different states criminal laws will have little or no difference to the contents and provisions of the Act, bearing in mind the slothful and inadequate legislative prowess of our lawmakers.

 
To be continued…

For Part One of this series, click here.

For Part Two, kindly click here.

 

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