ABSTRACT

Provocation on its own it not a total defense as to make the accused discharged of his guilt. It reduces murder to manslaughter. This essay considers the adequacy of this defense by examining it under the penal laws of Nigeria and different centers.

The general requirement is that of the deceased must have been caused by accused upon provocation induced by the deceased himself and this must be offered before the accused had time for his passion to cool down. The injury inflicted must also be proportional and must be one as would have caused a reasonable man to resort to the same consequence

The adequate of this defense, in the light of the scope of this essay is purely a psychological question. The test of provocation is inadequate. It is plainly illogical not to recognize the fact that different people react differently to stimuli and the law, by its hording expects a man dethroned in his reasoning faculty to inflict a reasonably proportional injury which only a reasonable man in his senses could do.

The aim and objective of this work is to access the meaning of the term provocation as provided for under the penal and criminal codes and other relevant statutes, case law and by various author, its nature, element and the condition under which the defense can avail a person from criminal liability.

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0:  INTRODUCTION

It is a grievous offence and a serious crime under the common law for a person to cause the death of another person and no defense will avail such person. However, it soon developed that there is a rebuttable presumption that practically speaking every common law crime (offense) requires adequate proof of guilty soul.

Generally, the presumption of the law is that a man intends the natural consequences of his act.^[1] The canal principle of criminal law of intention as it is in the legal maxim “actus non fact reum nisi men sit rea” which means an act does not make a person legally guilty unless the mind is legally blame worthy.^[2]

The law says where a person kills another in circumstances which but for provision of the section, it would give rise to murder. There are certain unlawful killing which does not amount to murder section 317^[3] provides that any unlawful killing which does not amount to murder is manslaughter. Manslaughter may be voluntary or involuntary; involuntary manslaughter covers cases in which there is no intention to kill or cause grievous harm. Voluntary manslaughter on the other hand occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation.

Thus the provision of section 318 ⁴of the Criminal Code is to 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. However, 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 decreased would have on a reasonable man, so that an unusually exactable or pugnacious person will not be able to rely on it as a defense to charge unless the provocation was such as to have led an ordinary person to act in the way the accused did.

It must be observed that provocation, where it is a defense, does not negate Mens rea. It is allowed as a defense because, even though the accused has committed the actus reus of an offense with the requisite means rea, the law considers that at the moment of the commission of the physical act resulting in the actus reus, the accused by reason of passion arising from the act of provocation was not master of his mind.

1.1.0: Background of the study

It is an establish fact under the law that any act of killing which is unlawful is a criminal act. Such acts under the specific offence are referred to as „‟unlawful homicide which includes murder, manslaughter, suicide, infanticide.

Also any intention to kill or cause grievous harm by a person to another and which eventually results into death is an unlawful killing which is usually termed

„ murder‟. However, there are certain killings which do not amount to murder section 317 of the criminal code provide that an unlawful killing which does not amount to murder is manslaughter.

Manslaughter may be voluntary or involuntary; involuntary manslaughter covers cases in which there is no intention to kill or cause grievous harm. Voluntary manslaughter on the other hand occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation. Thus the provocation of section 318 of the criminal code 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. However 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 or pugnacious person will be able to rely on it as a defense to a charge unless the provocation was such as to have led an ordinary person to act in the way the accused did.

1.2.0: Objective of the Study

The aim and objective of this work is to examine the meaning of the term

„provocation‟ its plea as a defense to criminal charge in Nigeria and the conditions under which it can avail a person by reducing his capability from murder to manslaughter or culpable homicide punishable with death to that not punishable with death. In view of this, this work shall attempt to achieve the following goals:

• To examine the defense as well as its elements
• To examine the defense under the Nigeria Criminal justice System; what constitute the defense and its grounds for reducing murder to manslaughter.
• To examine the burden of proof, the effect, adequacy and limitation of the defense and to suggest or make recommendation on the defense if there is any.

[1] Stephen Emoga vs. The State(1997) 7 SCNJ.518

[2] R vs. Adekanmi (1994) 17 NLR 99

[3] Criminal Code Act Cap ‘C 38’ LFN. 2004 ⁴Ibid