THE DEFENSE OF PROVOCATION: A MITIGATING FACTOR IN HOMICIDE

CASES IN NIGERIA

BY

AJISEGIRI, ESTHER OLUWATOMISIN

MATRIC NO: 19/206LAW/085

BEING A LONG ESSAY SUBMITTED TO THE DEPARTMENT OF PRIVATE AND

PROPERTY LAW, FACULTY OF LAW, IN PARTIAL FULFILMENT OF THE
REQUIREMENTS FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAWS
(L.L.B. HONS)

DECEMBER, 2024

i
 DECLARATION

I, AJISEGIRI, ESTHER OLUWATOMISIN, hereby declares that this Project titled, “The
Defense of Provocation: A Mitigating Factor in Homicide Cases in Nigeria” was earnestly
written by me, and is a product of my research efforts, during the course of which I was under
the supervision of Dr. G. Shajobi Ibikunle. This long essay has not been presented anywhere, and
will not be presented elsewhere, for the award of a degree or certificate. All sources contained
herein have been duly acknowledged.

__________________________________ ___________________

AJISEGIRI, ESTHER OLUWATOMISIN DATE

19/206LAW/085

ii
 CERTIFICATION

This project titled ‘’ “The Defense of Provocation: A Mitigating Factor in Homicide Cases in
Nigeria” has been read and approved as meeting part of the requirements for the award of
Bachelor of Laws Degree (L.L.B. HONS) in Faculty of Law, University of Abuja.

__________________________________ ___________________
Dr. G. Shajobi Ibikunle DATE
(SUPERVISOR)

_________________________________ ___________________
Prof. Uwakwa Abugu DATE
(HEAD OF DEPARTMENT)

_________________________________ ___________________
Prof. Uwakwa Abugu DATE
(DEAN, FACULTY OF LAW)

__________________________________ ___________________
EXTERNAL EXAMINER DATE

iii
 DEDICATION

This project is dedicated to Almighty God for his guidance and protection on successful
completion of this project. This project is also dedicated to my parents Mr. and Mrs. Ajisegiri,
who have been my backbone throughout this journey.

iv
 ACKNOWLEDGEMENTS

First of all, I thank Almighty Allah for giving me the wisdom and knowledge to complete this
long essay, and for protecting me throughout my entire journey in this school, without him, I am
nothing.

I am immensely grateful to my supervisor, Dr. G. Shajobi Ibikunle, who also doubles as my

lecturer, for her guidance and advice during the course of conducting this research study.

My heartfelt gratitude goes to my indefatigable HOD, Prof. Uwakwa Abugu, who has been a
fatherly figure for us throughout this journey, I also wish to express my appreciation to the Dean,
faculty of law, Prof. Uwakwa Abugu, who is like a father figure and mentor to me and most of
my mates during the course of our undergraduate studies.

My profound gratitude goes to my parents Mr. and Mrs. Ajisegiri, for their parental love and care
throughout this journey, without them, this journey would not have been possible.

Special appreciation goes to my siblings, Ajisegiri Toluwani, Ajisegiri Samuel Temiloluwa,

Akinmola Blessing (BJ) and Ajisegiri Victoria for their financial and moral support. I love you
all.

I also wish to appreciate my senior colleagues Akinsola Hammad Adeniran for his advice and
moral support when I started this research study, and for always coming to my aid whenever I
needed him, God bless you.

I am very grateful to my friends, Sheba Olalekan Olatubora, Musa Sekinat, Oki Victory and
Ihechi for their support throughout this journey.

I also wish to thank my junior colleagues, Ekeh Precious and Adebayo Olayinka Esther for their
contributions towards the success of this project.

Lastly, special appreciation to the members of JUSTICE Chamber, University of Abuja, both
past and present God bless you all.

v
vi
 LIST OF STATUTES
Constitution of the Federal Republic of Nigeria 1999, (as amended)
Cap. C23 (LFN) 2004 (CFRN) 1999 10, 24, 29

Criminal Code Act (1916) Cap C. 38 LFN 2004 1, 2, 10, 14, 15, 19, 20, 24, 26

Criminal Law of Lagos State, 2015

Criminal Procedure Act Cap C41 LFN 2004

Penal Code Cap 89, Laws of the Federation of Nigeria, 1990

vii
 LIST OF CASES

Augustine Duru v State [1993] 3 NWLR 283 (SC). 36

Aoko v. Fagbemi [1961] 1 All NLR 400 (HC). 10

Bratty v attorney General of Northern Ireland [1961] 3 ALL 523 (ER) 39

Donoghue v Stevenson [1932] AC 562 (HL) 14

Enemchukwu v Okoye [2017] 6 NWLR 37 33

Gadam v R [1954] 14 WACA 442 35

Guobadia V. State [2004] 6 NWLR 869 (SC) 39

Iromantu v. State [1964] 1 All NLR 311(SC)

21, 34

Mancini v Director of Public Prosecutions [1942] AC 1 (CCA) 19

Maideribe v Federal Government [2004] 5 NWLR 204 (SC) 11

Mgboiko v State 21

Musa v. State [1992] 2 ANLR 550 21

MPC v Caldwell [1982] AC 341 13

Ndubuisi v. State [2018] ALL FWLR 995 (SC) 15, 16

Nomad v Bornu [1954] 21 NLR 31 (SC) 17

Obaji v State (1965) I All NLR 269 2

Ogbu v R [1959] NRNLR 22 (FSC) 35

Oladipupo v. The State [1993] 6 SCNJ 233 (SC) 15, 16

R v Adekanmi [1944] 17 NLR 99 18

R v. Dudley & Stephens (1884) 14 QBD 273, DC 12

R v. Duffy [1967] 1 QB 63 8

viii
R v. Dyson [1908] 2 KB 454 (CCA) 20

R v Green, [1955] 15 WACA 17

R v Johnson [2019] ONCA 145 32

R v Josiah Onyeamaizu [1959] NMLR 93 36

R v Manchuk [1938] S.C.R 18 16, 31

R v Moloney [1985] 1 AC 905 13

R v stean [1947] 997 KB (CCA) 12

State V Da’u [2021] LCN 5156(SC) 43

Stingel v The Queen [1990] 171 CLR 312 18

The State v. Abba Mohammed, [1969] NMLR 296 (HC) 17

United States of America v. Antoinette Browner [1989] 3 AC 549 16

Uwaekweghinya v. State (2005) 9 NWLR (pt. 930)27 1

Vino v. The Queen [1978] HCA 9 1

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 LIST OF ABBREVIATIONS

ACJA – Administration of Criminal Justice Act

All NLR – All Nigerian Law Reports

CA – Court of Appeal

CFRN – Constitution of the Federal Republic of Nigeria

FRSC – Federal Road Safety Corps

LPELR – Law Pavilion Electronic Law Reports

NRNLR – Northern Nigeria Law Reports

NWLR – Nigeria Weekly Law Reports

SC – Supreme Court

WACA – West African Court of Appeal

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 TABLE OF CONTENTS
Title page - - - - - - - - - - i
Declaration - - - - - - - - - - ii
Certification - - - - - - - - - - iii
Dedication - - - - - - - - - - - iv
Acknowledgement - - - - - - - - - v
Table of Statutes - - - - - - - - - - vi
Table of Cases - - - - - - - - - - vii
List of Abbreviation - - - - - - - - - ix
Table of Contents - - - - - - - - -
x
Abstract - - - - - - - - - - xiii

CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background of the Research -- - - - - - - 1
1.2 Statement of Problem - - - - - - - - 2
1.2.1 Research Questions - - - - - - - - - 3
1.3 Aim and Objectives of Research - - - - - - 3
1.4 Significance of the Study - - - - - - - 4
1.5 Scope of the Study - - - - - - - - 4
1.6 Research methodology - - - - - - - - 5
1.7 Literature review - - - - - - - - 5
1.8 Organizational layout - - - - - - - - 8

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 CHAPTER TWO

HISTORICAL EVOLUTION

2.1 Conceptual Analysis - - - - - - - - 10

2.1.1 Crime - - - - - - - - - - 10

2.1.2 Elements of Crime - - - - - - - - 11

[Link] Actus Reus - - - - - - - - - - 11

[Link] Mens Reas - - - - - - - - - - 12

2.1.3 Meaning and Nature of the Defense of Provocation - - - - - 14

2.1.4 Element of the Defense of Provocation - - - - - - 16

[Link] Heat of Passion - - - - - - - - - 16

[Link] Loss of Self control - - - - - - - - 17

[Link] Wrongful Act and Insult - - - - - - - - 18

[Link] Reasonable Man’s Test - - - - - - - 18

[Link] Mode of Resentment - - - - - - - - 19

2.1.6 Meaning and Nature of Homicide - - - - - - - 19

2.1.7 Types of Homicide - - - - - - - - 20

2.2 Theoretical Framework - - - - - - - - 23

CHAPTER THREE

LEGAL FRAMEWORK FOR PROVOCATION IN NIGERIA

3.1 Constitution of the Federal Republic of Nigeria 1999 - - - 24

3.2 Criminal Code Act 1990 - - - - - - - 26

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3.3 Penal code Act 1960 - - - - - - - - 27
3.4 Nigerian Police Act 2020 - - - - - - - 29
CHAPTER FOUR
CHALLENGES AND PROSPECTS OF PROVOCATION IN HOMICIDE CASES
4.1 The ordinary person standard - - - - - - - 31
4.2 Impact of the General Defenses of Criminal Liability on the Criminal Charge of

Homicide - - - - - - - - - 32

4.2.1 Mistake - - - - - - - - - - 32

4.2.2 Self-Defense - - - - - - - - - 34

4.2.3 Intoxication - - - - - - - - - 35

4.2.4 Accident - - - - - - - - - - 36

4.2.5 Insanity - - - - - - - - - - 37

4.2.6 Automatism - - - - - - - - - 38

4.3 Restrictions and Limitations of the Defense of Provocation - - - 38

4.4 Challenges of the Defence of Provocation in Unlawful Homicide - - - 39

4.5 Effects and Prospects of a successful plea Provocation in Unlawful Homicide 41

CHAPTER FIVE

FINDINGS, RECOMMENDATION AND CONCLUSION

5.1 Summary of findings - - - - - - - - 43

5.2 Recommendation. - - - - - - - - - 47

5.3 Conclusions - - - - - - - - - 48

BIBLIOGRAPHY

xiii
 ABSRACT
This project examines how a defendant can invoke the defense of provocation under Nigeria
criminal law in Homicide cases. It looks at provocation as a mitigating factor inspite of legal
sanctions accompanying the commission of crimes like murder, manslaughter, domestic violence
and other crimes of passion. The project further examines the conceptual terms and historical
adaptation of provocation as a defense in criminal cases, taking into considerations the opinion
of other countries and scholars in legal and non legal spheres. The study adopts a doctrinal
research methodology. The findings of this work have revealed setback which defense of
provocation faces within Nigeria. These findings are Ambiguity in legal standards, provocation
arising from domestic violence difficulty in proving loss of self-control. The study recommends
that Nigerian Courts should always delve into the dynamics of human psychology before
deciding cases involving the defense of provocation. Also amend sentencing guidelines to reflect
severity of provocation.

xiv
 CHAPTER ONE

GENERAL INTRODUCTION
1.1 Background of the Study

In Nigeria any act of killing which is unlawful is a criminal act(case). These actions fall

under the category of illegal homicide, which also includes manslaughter, murder, infanticide,

and suicide. Additionally, any intentional killing or serious injury to another person that

ultimately results in death is illegal and is commonly referred to as "murder." (R v

WOOLIN)1998. The burden of establishing an accused individual's guilt rests with the person

making the allegation. On the other side, an accused individual has the right to defend himself

against the allegation against him, and one such defense is provocation. An accused person

typically raises the defense of provocation in homicide cases involving murder and

manslaughter. Nonetheless, not all killings are considered murder. While voluntary manslaughter

happens when someone purposefully kills another, the crime is changed from murder to

manslaughter because of provocation, according to Section 317 of the Criminal Code Act.

A person who does not intend to murder may also use the defense of provocation if they do

physical damage out of unexpected fury or a loss of self-control brought on by provocation. The

defense's complexity has generated a great deal of criticism. It is contentious because the court

frequently wants to determine how much provocation the accused individual has given.

Therefore, provocation under Section 318 of the Criminal Code Act states that a person is only

guilty of manslaughter if he unlawfully kills another in a situation that would have otherwise

been considered murder, provided that the act is carried out in the midst of intense passion

brought on by abrupt provocation and before the person has had time for his passion to subside.

In the Obaji v. State case, the Supreme Court ruled that section 283 of the Criminal Code Act

should be interpreted in conjunction with section 318 of the same law. Thus, before the defence

1
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 The Problem Statement

Because the defendants allowed themselves to be provoked, the contentious nature of the defense

seems to allow for more forgiving punishment. As a result, the determination of culpability is

what establishes whether an individual should be held accountable for their actions. This is done

by applying the reasonable man's test, which is a universal criterion to ascertain whether an

average person would have been so provoked if they had been in the defendant's shoes. The bar

for the defense will be established if the prevailing perspective on social conduct holds that vocal

responses to provocation are permissible, followed by walking away if the provocation

continues.

1.2.1 The Research Question

The argument of provocation elevates the feeling of anger over other emotions such as, fear,

despair, compassion and empathy, it is uncertain if, in moral sense, a killing is inherently less

guilty when conducted in fury as a consequence of provocation. In fact, there is a claim that

using rage and an abrupt lack of self-control as a defense against murder is immoral.

Consequently, this effort will bring up a number of difficulties for decision-making, such as: to

[Link] long does the intensity of passion last?

[Link] individual who provoked the behavior must be the target of the conduct;

2
[Link] someone be provoked by an insult or wrongdoing? This study will also address the

question based on the essential components of the defense of provocation as well as the

conditions under which the provocation defense would be successful.

1.3 Study Aims and Objectives

Considering the definition of provocation, this effort will try to accomplish the following

objectives:

(a) To guarantee a comprehensive examination of Nigerian law's provocative legal framework.

(a) To analyze the components and nature of the defense.

(c) To assess the defense's impact, sufficiency, and limitations as well as the burden of evidence,

and to offer suggestions or comments on the defense, if any

(d) to investigate the challenges related to provocation.

1.4 Importance of the Research

Numerous developments have been made to the law of provocation in other common law

countries as well as locally. However, the idea of provocation as it applies in Nigeria is a major

source of inspiration for the article. It also examines the precise definition of provocation, the

elements that make up its defense, the applicability of the offer's features, and the proportionality

requirement in the defense's objective test.

In order to evaluate the severity of the provocative behavior or insult and the appropriate course

of action for the court when confronted with such claimed traits, it also examines whether

specific triggering criteria must be met before an offender's features may be taken into

consideration. It clarifies the circumstances under which murder might be reduced to

manslaughter and investigates who is responsible for proving provocation.

3
It is intended that the analysis provided will be applicable to all systems where comparable

defenses are accepted, contribute to the ongoing moral discussion that the partial defenses to

murder spark, and be able to evaluate the court's attitude toward the defense.

1.5 The Study's Scope

The paper discusses provocation as a defense or mitigating element in homicide and how

Nigerian courts have applied it. The researcher makes use of legislation laws, court rulings, and

the opinions of text authors, or jurists. in order to draw attention to the idea of provocation in

Nigeria. Nonetheless, different legal systems are mentioned in a comparable manner.

1.6 The study's research methodology

This study is doctrinal in nature. Textbooks, papers, the internet, publications, journals, and court

rulings from Nigeria and other jurisdictions are examples of research materials. This study is

therefore library-based.

1.7 Review of the Literature

The majority of illegal killings that do not fall under the murder category are manslaughter.

Manslaughter can be classified as either voluntary or involuntary. If mens rea is present in the

earlier case, but the mitigating circumstances only provide a partial defense. The pursuit of more

effective and simpler homicide law enforcement has at some point caught the attention of

authors. Nonetheless, authors have written about the essence of the doctrine of provocation. In

4
order to evaluate the court's attitude toward the defense, writers also consult case laws, both from

Nigeria and outside of it. Additionally emphasized are the requirements of the criminal and penal

laws. The primary laws controlling criminal culpability in Nigeria are included in those sections.

Delvin J. defined provocation. in R. According to v. Duffy, the deceased man's deed toward the

accused might lead any rational man to lose control of his emotions, and it does so by exposing

them to such intense emotion that they are momentarily unable to control their thoughts.

Section 3 of the Homicide Act of 1957 provides a partial definition of this. Under such

circumstances, if there is evidence that the accused person was provoked to lose his self-control

—either by words, deeds, or both—the jury will decide whether the provocation was sufficient to

cause a reasonable man to act in that way. And while deciding that question, the jury will

consider all actions and words based on the impact that they believe a reasonable man would

have experienced.

In their book, Okonkwo and Naish discuss the idea in great detail and with authority. In this

work, Smith and Hogan covered every facet of criminal law, including criminal culpability and

precise defense. Additionally, they concur with Lord Delvin's interpretation of provocation.

In their later works on provocation and the style of anger, Smith and Hogan argued that if the

offense is to be reduced to manslaughter, the mode of resentment must have a reasonable link to

the [Link], Lord Diplock stated that this position was no longer acceptable because

it would be incorrect for the jury to be told that "a fist might be answered with a deadly weapon,

but now with a deadly weapon." This is because fists were answered with a deadly weapon,

which would take the jury away from a question that is solely for them and on which their

verdict is final. All of them were produced using illustrations from cases that were determined.

5
L.B. In his work, Curzon covered every facet of criminal law, criminal liability, and even

defenses. According to Granville Williams' 2 definition, crime is both a legal violation and a

behavior that entails a public and solemn declaration of the community's moral disapproval. With

a thorough understanding of Nigerian criminal law, Yahaya Abubakar examines the technical

aspects of the defense of provocation and its relationship to self-defense, adultery, and defense.

According to him, the defense of provocation is predicated on a real and rational lack of self-

control.

By stating that provocation is not a defense to any other crime other than murder, and not even

attempted murder, Card, Gross, and Jones appear to have a slightly different perspective on the

matter. They contend that the person slain need not have used the offensive words or actions in

order for provocation to be justified. They contend that a person is only guilty of manslaughter if

he unintentionally kills someone other than the person who provoked him while aiming at the

latter. According to their analysis of the reasonable man's test, it all boils down to responding to

two questions:

[Link] the sensible guy have been unruly?

[Link] the accused's retaliation have been appropriate for a reasonable man?

Section 3 of the Homicide Act of 1957 is used by Michael Jefferson to analyze provocation. He

asserts that section 3 is customarily broken down into two "limbs" for expositional purposes:

whether the accused was actually provoked and whether a reasonable person would have been

provoked. According to him, provocation is only a defense for murder; therefore, the accused

must have intended to kill or cause serious bodily harm before he could use this defense. The

Acts ask the jury whether provocation was sufficient to cause a reasonable man to act in this

6
way, but it does not alter the definition of provocation other than allowing the jury to consider

both words and deeds. Additionally, the criterion of a sudden and temporary loss of self-control

was unaffected by the passage of Section 3.

In his work, Andrew Ashworth explores the defense of provocation from the standpoints of

provocation's aspects of justification and excuse, respectively. Ashworth acknowledges that it

may be used as a qualified defense to murder in many legal systems, reducing the charge to

manslaughter or culpable homicide. He poses some important queries regarding whether it will

ever be a full defense or, if not, how it varies from those conditions that are recognized as full

defenses.

According to Catherine Elliot and Frances Quinn, provocation can occur "by things done," "by

things said," or "by both," meaning that words alone may be sufficient since the Homicide Act of

1957. The previous instance of R. The 1957 Act eliminates the requirement that provocation

must be anything done by the deceased to the accused, as was the case in v. Duffy Supra.

Catherine Elliot and Frances Quinn also discuss the reasonable person's test in the appendix,

stating that in order for the defense to be successful, it must be demonstrated that a reasonable

person would have been provoked and that the provocation would have caused the reasonable

person to act in the defendant's manner. The answer was not entirely out of proportion to the

provocation, to put it another way.

In his analysis of manslaughter and provocation, Owoade briefly discusses the nature of

provocation prior to the passage of the Homicide Act of 1957 as well as the defense's evolution

following the Act. He does, however, concur with other writers in stating a fundamental

necessity for the defense of provocation. He also concurs with Okonkwo and Naish that the

prosecution always has the burden of proving a provocation plea beyond a reasonable doubt.

7
1.9 Layout of the Organization

There are five distinct chapters in this research. The notion of the defense of provocation in

homicide cases is introduced generally in Chapter 1 of the research, which also covers the study's

background, goals, scope, and other pertinent topics. The theoretical underpinnings and

definition of provocation are covered in Chapter 2. The topics of nature, provocation, and

homicide are covered. The legal framework on provocation and the primary focus of this work—

the criminal law, penal code, and ACJA—are provided in Chapter 3. The study's potential and

problems are presented in Chapter 4.

The work is concluded in the fifth and final chapter, which also offers insights into the study's

findings and offers helpful suggestions for the future of the defense of provocation in Nigerian

homicide cases.

The second chapter

EVOLUTION OVER TIME

2.1 Analysis of Concepts

2.1.1 Criminal Activity

Humans are lonely, impoverished, vile, savage, and short, according to legal scholar Thomas

Hobbes. According to this claim, in an unruly society, people would go to great lengths to satisfy

their own desires, even committing crimes against the state or other people. This made the

introduction of law into human civilization necessary in order to control human behavior and

relationships. The idea of a crime, like many other legal ideas, lacks a single, widely recognized

definition; yet, most acceptable definitions have certain common elements, such as the fact that it

is a violation against the state. Any offense that contravenes state law and is seen negatively by

8
society is considered a crime. An act or violation that contravenes state law and is widely

condemned by society can also be referred to as a public wrong. The criminal code's definition

of a "offence" must also be taken into consideration. According to Section 2 of the Criminal

Code Act of 1990, an offense is defined as an act or omission that is made criminal by a law.

According to the aforementioned, when someone violates a law established by a state to control

the behavior of its residents, it might be considered a crime. Section 36 (12) of the Federal

Republic of Nigeria 1999 Constitution states: "Subject as otherwise provided by this

Constitution, a person shall not be convicted of a criminal offence unless that offence is defined

and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers

to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument

under the provisions of a law." This means that in order for an offense to be legitimately

considered a crime in Nigeria, it must be specifically defined and have a prescribed punishment

for noncompliance. In the case of Aoko v. Fagbemi, the court upheld this constitutional

protection, ruling that a lady in the southern states of Nigeria could not be found guilty of

adultery since it was not included as a crime in any of the states' written laws. As a result, the

accused was cleared of the adultery accusation because there was no such offense or associated

punishment in southern Nigeria. Mahmud Mohammed CJN (as he was then known) cited Section

36(8), which states that "no person shall be held to be guilty of a criminal offence on account of

any act or omission that did not, at the time it took place, constitute such an offence, and no

penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the

offence was committed," in a similar ruling in the Maideribe v. Federal Government case. The

constitution's combined reading of sections 36(8) and (12) provide guidance on how to prosecute

and convict someone for allegedly committing a crime.

9
2.1.2 Components of Criminal Activity

In order for a criminal case to be successfully prosecuted, it is essential that all of the

components of the offense be proven or established in court, and that this be done beyond a

reasonable doubt. Actus Reus (guilty act) and Mens Rea (guilty mentality) are two aspects that

have been accepted to help prove the components of each crime or offense. Despite the fact that

none of Nigeria's laws specifically address these aspects, Nigerian courts have still accepted

them out of convenience.

[Link] Actus Reus

A key idea in criminal law is actus reus, which refers to the actual act or illegal omission that

qualifies as a crime. It means "guilty act" and is taken from Latin. Mens rea, or the "guilty mind"

or purpose, must be demonstrated in addition to actus reus in order for a crime to be proven. The

prosecution must properly prove the criminal deed that supports the accused's conviction before

the accused is declared guilty of an offense. The act of inflicting death is the physical element of

the crime, and the actus reus for murder is the deliberate or careless killing of another person. In

other words, a person cannot be found guilty of murder unless someone else dies. An act or

omission that qualifies as a crime might serve as the actus reus, or the guilty conduct that results

in an offense. Although it's a common misconception that an actus reus is limited to an act, this

is incorrect because an omission can also be considered a sinful conduct. For example, section

343 (1)(b) of the criminal code states that "anyone who, in a way so reckless or careless as to

endanger human life or to be likely to cause harm to any other person, omits to take precautions

against any probable danger from any animal in his possession is guilty of a misdemeanor, and is

liable to imprisonment for one year." Section 344 states that "anyone who unlawfully does any

act, or omits to do any act which it is his duty to do, not being an act or omission specified in the

10
preceding section, by which act or omission harm is caused to any person, is guilty of a

misdemeanor, and is liable to imprisonment for six months." Based on the aforementioned, it is

clear that both an act and an omission could constitute the actus reus of a crime.

[Link] Men's Reasons

Mens rea plays a pivotal role in promoting fairness and justice within a criminal justice system it

has proven to be instrumental during judicial proceedings, thus aiding both the courts and

litigants in the facilitation of justice. It is the mental component that is present alongside the

prohibited act (known as the actus reus). Mens rea encompasses different levels of intent,

ranging from deliberate and premeditated actions to those committed recklessly or negligently.

The requirement for prosecutors to prove the defendant’s mental state beyond a reasonable doubt

ensures that convictions are based on solid evidence. Also, the defendants who pleads lack of

intent in regards to committing a crime would also have to convince the court that such was done

with a good intent. In the English case of R v. Dudley and Stephens, a well-known maritime

survival scenario played out where the defendants, stranded at sea without provisions, killed and

cannibalized a cabin boy in order to survive. The defendants argued necessity as a defence,

claiming that they were driven by desperation to avoid certain death. However, the court rejected

this defense, emphasizing that the deliberate killing of an innocent person demonstrated a lack of

moral culpability, regardless of the circumstances. On the other hand, in the case of R v stean,

the court relied on the elements of mens rea in acquitting a defendant from a charge which he

should have ordinary been guilty for due to his guilty act. The facts of the case is that the

accused, was a British subject, he had broadcasted for the Germans during the second world war,

this was against the defense regulation, his action was against the prohibited act of "doing an act

likely to assist the enemy with intense to assist the enemy." However, the purpose of his action

11
was to save his wife and children form the concentration camp of the Germans. The court of

criminal appeal allowed the appeal of the defendant because the prosecution had failed to prove

the specific intent to assist the enemy

The elements of mens rea, which include intention, recklessness, negligence, accident, and

unconsciousness, can be divided into various types based on the mental state of the person who

committed the act. The court will consider these types of mens rea differently.

In the case of R v Moloney, it was decided that in order to determine whether a defendant

intended his act, two questions must be asked: first, the jury should ask themselves if the

consequences of the defendant's action were a natural and probable consequence; second,

whether the defendant foresaw the consequence as a natural consequence of their action; if both

questions are answered in the affirmative, the jury can proceed to imply intention on the part of

the defendant. An act would be considered intentional if it was highly likely or probable and the

defendant, after weighing this, also desired the consequences of his actions.

In the English case of MPC v Caldwell, the court held that a person is reckless as to whether

property is destroyed or damaged when: (1) he does an act which in fact creates an obvious risk

that property will be destroyed or damaged, and (2) when he does the act, he either has not given

any thought to the possibility of there being any such risk, or has recognized that there was some

risk involved, and nevertheless went on to do it. b) Recklessness: it is asserted that actions taken

in this state of mind are foreseeable, likely, or probable, but the defendant continues the act

without really considering the potential consequences of his actions.

c) Negligence: In the well-known case of Donoghue v. Stevenson, the court held that even

though a man may not have anticipated the consequences of his actions, the law expects him to

have anticipated them and taken steps to prevent them. Mrs. Donoghue, who had no direct

12
contract with Mr. Stevenson, became ill after drinking ginger beer that a friend had bought her,

and she sued him, claiming that he owed her a duty of care, establishing the "neighbor principle,"

which maintains that one must exercise reasonable caution to avoid actions that could

foreseeably harm others. The test for reasonableness in negligence is primarily objective, and the

court is typically keen in applying the "reasonable man's" test when determining a defendant's

guilt.

d) Accident: Section 24 of the Criminal Code 1990, among other things, states that a person is

not criminally responsible for an act or omission that occurs independently of the exercise of his

will or for an event that occurs by accident. In general, the plea of accident can be really crucial

towards exonerating an accused person, except in strictly liability offences. In certain situations,

it may be impossible for a man to foresee the likelihood or probability of an event, and the man

may not have intended for such an event to occur.

2.1.3 Definition and Character of the Provocation Defense

The concept of provocation in criminal law is quite distinct from its usual application or usage in

our day-to-day lives, it goes beyond the normal idea of annoyance or grievance over an offensive

act or omission. In criminal law, provocation serves as a defense pleaded by a defendant in the

criminal charge of murder, which is an unlawful homicide otherwise known as the unlawful

killing of a human being by another human being. Provocation refers to actions or events that

incite a reaction, often anger or violence, from others, which resultantly leads to the death of

another. The essence of pleading provocation is to mitigate the consequences of a direct

conviction of murder. The effect of this plea is provided for in section 318 of the Nigerian

Criminal Code which states that; 'When a person who unlawfully kills another in circumstances

which, but for the provisions of this section, would constitute murder does the act which causes

13
death in the heat of passion caused by grave and sudden provocation, and before there is time for

his passion to cool, he is guilty of manslaughter only.

Provocation is defined as “some act, or series of acts, done by the dead man to the accused which

would cause any reasonable person, and actually caused the accused, a sudden and temporary

loss of self-control, rendering the accused subject to passion as to make him or her for the

moment not master of his mind” in the Supreme Court case of Ndubuisi v. State. To better

understand these topics, consideration will be given to the provisions of the Nigerian Criminal

Code Act 1990, which, in accordance with section 283, expressly states that

When used to describe an offense in which assault is a component, the term "provocation"

encompasses, with the exception of the following, any unlawful act or insult of a kind that would

likely deprive an ordinary person of the ability to exercise self-control and lead him to attack the

person by whom the act or insult is performed or offered, or to another ordinary person who is in

his immediate care, or to whom he stands in a filial, fraternal, parental, or conjugal relationship,

or in the relationship of a master or servant. When one person does or offers such an act or insult

to another, or to someone who is in the direct care of that other, or to whom the latter has any of

the aforementioned relationships, the former is said to have provoked the latter to attack.

According to the aforementioned clauses in this section, a provoking act must be committed

against the party asserting provocation, or against someone in his custody, control, or fiduciary

connection in order for this defense to be properly pled.

Furthermore, according to the Criminal Code, a legitimate act does not constitute provocation for

an attack; therefore, an unlawful arrest does not always constitute provocation for an assault,

although it may serve as proof of provocation to an individual who is aware of the illegality. This

point was highlighted in the Nigerian case of Oladipupo v. The State, where the court held that in

14
order for an accused person to use the defense of provocation, he must have committed the act

for which he is charged in the following circumstances: (i) in the heat of passion; (ii) the act must

have been caused by sudden provocation; (iii) the act must have been committed before there

was time for passion to cool; and (iv) the mode of resentment must be proportionate to the

provocation offered. Failure to do so would be viewed as a regular assault or retaliation. It is

crucial to remember that the defense of provocation is never sufficient to clear an accused person

of illegal killing.

2.1.4 A Component of the Provocation Defense

As previously mentioned, the defense of provocation plays a significant role in reducing the

severity of murder and turning it into a manslaughter conviction. This defense is not a default

choice, though, and specific requirements must be met in order for it to be properly pled. It was

determined in the Ndubuisi v. State decision that, in most cases, the burden of proof rests with

the individual making the allegation. Section 135 of the Evidence Act of 2011 establishes the

principle that "he who asserts must prove." A successful defense would only reduce the crime

from murder to manslaughter. In serious charges like murder, where the prosecution has done its

part to properly assert and prove the defendant's guilt, the burden of proving his innocence would

shift to the defendant, who would have to demonstrate that his actions were unintentional. The

factors of provocation that will be examined here were established by the court in the Oladipupo

v. State decision.

[Link] Passionate Heat

This can be defined as a defendant's highly emotional state of mind that led to the illegal act that

killed someone else. Provocation may only be used as a mitigating factor to reduce a murder

accusation to manslaughter; it can never be effectively used as a justification for murder. A

15
conviction for unlawful homicide committed in the heat of passion caused by grave and sudden

provocation would result in a conviction for manslaughter rather than provocation, according to

Section 318 of the Criminal Code. In the case of United States of America v. Antoinette

Browner, the term "heat of passion" was defined as "a passion of fear or rage in which the

defendant loses his normal self-control as a result of circumstances that would provoke such a

passion in an ordinary person, but which did not justify the use of deadly force." After an

altercation, the defendant's wife in R v. Green moved in with her mother, where she started

accepting approaches from a third party. The defendants met with her many times in an attempt

to patch things up, but all of their meetings ended in failure. 9:00 p.m. When you went to see his

mother-in-law one evening, you discovered that his wife was having an affair with someone else.

Disappointed, he went back home, but it was around one in the morning. return to his mother-in-

law's home, where he killed his mother-in-law and his wife as she attempted to flee into her

chamber. He entered a plea of provocation on a murder charge, but it was dismissed because

there had been enough time between the provocation and the murder for the components of heat

of passion to apply. The offender was found guilty by the court after sufficient time had passed

between 9:00 p.m. and one in the morning. for fervor to cool

Loss of Self-Control [Link]

The foundation of this argument is the claim that the defendant was so severely angered that they

lost control and committed the murder. "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,"

16
according to the Criminal Code of 1990. This means that in order to properly apply the element

of self-control, one must consider the accused's immediate response and compare it to the act that

caused the loss of self-control. In the Nomad v. Bornu case, the deceased was about to leave her

husband when she took some clothes he had bought her. He became enraged and attempted to

stop her from taking the clothes, but she pushed him to the ground twice, and he then struck her

twice on the head with a stick, killing her. Because the accused's actions were out of proportion

to the provocation, the court found him guilty. Consequently, it was unsuccessful to reduce a

murder to manslaughter. However, because the accused was a Kanuri man from Bornu and the

Kanuri wear daggers on their arms as ornaments, the court of first instance in The State v. Abba

Mohammed ruled that stabbing to death in reprisal for a slap was not disproportionate to the

provocation. Since stabbing someone cannot be accurately compared to slapping them, it is

respectfully urged that this judgment is extremely incorrect and does not follow the Criminal

Code. The test for determining a disproportionate act should be objective.

[Link] Inappropriate Behavior and Insult

This component asserts that in the absence of an unlawful conduct, provocation cannot be used

as a defense. The offense or insult in question must be severe enough to impair the ability of the

average person to exercise self-control, and the accused must have acted on it without warning or

waiting for the emotion to subside. According to the court's interpretation in Stingel v. The

Queen, the phrase "wrongful" only refers to a "act" and excludes "insult." The court determined

that it would be unreasonable to need an insult to be unlawful before it could qualify as

provocation, particularly when it came to differentiating between a just and a wrongful insult.

[Link] The Test of the Reasonable Man

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The standard of a "Reasonable man" is an objective test used to determine whether a defendant's

actions in a murder charge were reasonable. It considers the accused person's position in life and

standard of civilization while determining what a reasonable man in the defendant's

circumstances would do. What impact will the provocation have on a reasonable guy is the

question that has to be posed in this situation. And how did the accused respond to the

provocation? The defense will not be utilized if the accused was provoked and a reasonable man

(in the accused's station in life and standard of civilization) should not have been provoked. In

the case of R v. Adekanmi, the wife made fun of her husband, a primitive peasant and

uneducated, by calling him impotent and claiming that she was having sex with other men. This

infuriated him, and he took measures that ultimately resulted in her murder. In adopting the

reasonable man's test, Francis J. believed that the impact of a word should be evaluated on a

reasonable man rather than a civilized or educated one. The court's reasoning for downgrading a

murder case to manslaughter was that the defendant's wife's remarks may have enraged a rational

man.

[Link] Resentment Mode

This describes how the defendant responds to the provocation. The response ought to be

commensurate with the provocation that was given. An severe response, for example, might not

be warranted if the provocation was slight, yet a murder accusation might still follow. In the case

of Mancini v. Director of Public Prosecutions, the court discussed what the term "mode of

resentment" meant. It established a rule of law that the mode of resentment, such as the weapon

used in the act that resulted in death, must have a reasonable relationship to the type of violence

that was the provocation. Therefore, stabbing someone as a form of retaliation for a slap would

be out of scale. The method of resentment deals with the accused's degree of self-control in the

18
heat of the moment; the court would employ the above-mentioned reasonable man's test to

measure the significance of his acts.

2.1.6 The Definition and Character of Homicide

Black's Law Dictionary defines murder as when someone kills another person, and criminal

homicide as when someone intentionally, deliberately, carelessly, or negligently causes another

person to die. Homicide may generally be defined as the legal and illegal killing (sometimes

called murder) of another person. According to section 308 of the Criminal Code, a person is

considered to have killed another person whether they do so directly, indirectly, or by any other

way. It is evident from this that if someone indirectly causes another person to die, they would be

seen to have committed murder. This is further support by s 310, which states that “a person

who, by threats or intimidation or by deceit, causes another person to do an act or make an

omission which results in the death of that other person, is deemed to have killed him." In

regards to the unlawful killing of another, the criminal code provides that any person who

unlawfully kills another is guilty of an offence which is called murder or manslaughter,

according to the circumstances of the case. The Act also provides that for a person to be deemed

to have killed or cost the death of another, the death of the deceased must have occurred within a

year and a day after purporting to have caused the death. This was the position of the court in the

case of R. v. Dyson, where the accused who inflicted injuries upon the deceased more than a year

and a day before the date of death, as well as further injuries within that period that accelerated

the death, was charged and convicted of manslaughter, but had his conviction quashed on appeal

for misdirection, because the trial judge directed the jury that they might find the accused guilty

even if they thought that death resulted solely from the earlier injuries.

2.1.7 Homicide Types

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Lawful and illegal homicide are the two basic categories into which homicide may be divided;

these two categories will be covered in depth for the sake of clarity.

I. Criminal Murder

A lawful homicide is defined as the killing of a human being by another human being that is

permitted, justified, or excused by law. Based on this definition, it can be said that not all killings

would result in legal punishment; there are specific, prescribed circumstances in which homicide

would be deemed lawful. These include the following: the execution of a sentence, self-defense,

property defense, death by mishap, death resulting from a lawful arrest or while preventing

escape or during rescue after arrest, and death during riot suppression. These situations will be

covered in more detail below.

Death from Execution of a Court Sentence: Some laws stipulate that certain offenses carry the

death penalty; a person who carries out the court's order in these circumstances will not be

charged with murder because his actions were legal; such homicide would be considered

justified as long as the deceased was found guilty and given a death sentence by a court of

competent jurisdiction.

In the case of Musa v. State, the honorable justice Muhammad Uwais held, among other things,

that "by virtue of section 30 (now CFRN 1999, section 33) of the 1979 Constitution, a person is

even entitled to kill in the defense of his property provided he uses reasonable force in the

circumstance." This means that a person who uses reasonable force to defend his property would

be exempt from the charge of murder as long as the conduct was reasonable.

In Iromantu v. State, the deceased held the appellant's gun and, in an attempt to retrieve it from

him, the appellant accidentally touched the trigger, causing the gun to go off and kill the

deceased. It was decided that the death occurred by accident because there was no evidence of

20
voluntariness or recklessness. Death caused by misadventure: the death of the deceased in this

situation is purely accidental, that is, one done without intending to cause death and without

gross negligence, and this is excusable under the law.

Death due to self-defense: In Mgboiko v. State, the court held, among other things, that "the

defendant's use of force must also be shown to be proportionate to the force used imminently

threatened against him, and reasonable in the circumstances in which it was used." This means

that when someone dies as a result of an unlawful and unprovoked assault that causes a

reasonable fear of death or grievous harm to someone who was led to believe on reasonable

grounds that it is necessary for his preservation from death or grievous harm, the death is deemed

lawful. The accused must have had good reason to think that killing the attacker was the only

option to avoid dying or suffering serious physical injury to himself.

I. Illicit Murder

Provocation is used as a defense to murder, but its best result is the reduction of murder to

manslaughter. Unlawful homicide is defined as a killing that takes place under circumstances

that the law aims to prevent; these circumstances may include murder, manslaughter, suicide, or

infanticide. The various types of unlawful homicide will be briefly discussed below.

Murder: human life is very sacred, the right life is guaranteed under section 33 of the

constitution, therefore, is unlawful to take the life of another without any justification or being

authorized by the law. The criminal code, by virtue of s 316, provides for the crime of murder,

the act contemplates various scenarios that would amount to murder punishable under the law.

The provision states that a person would be deemed have committed the offence of murder (a)

Where the offender intends to cause death of the person killed, or that of some other person; (b)

Where the offender intends to do the person killed or to some other person some grievous harm;

21
(c) Where death is caused by means of an act done in the prosecution of an unlawful purpose,

which act is of such nature as to be likely to endanger human life; (d) Where the offender intends

to do grievous harm to some person for the purpose of facilitating the commission of an offence

which is such that the offender may be arrested without warrant, or for the purpose of facilitating

the flight of the offender who has committed or attempted to commit such offence; (e) Where

death is caused by administering any stupefying or over-powering things for either of the

purpose of facilitating the commission of an offence or for the purpose of facilitating the flight of

an offender who committed or attempted to commit such offence; (f) Where death is caused by

willfully stopping the breath of any person for the purpose of facilitating the commission of an

offence or for the purpose of facilitating the flight of the offender who has committed or

attempted to commit any such offence.

Manslaughter is defined as the unlawful killing of another person that does not amount to

murder. Section 317 of the Criminal Code states that "Any person who unlawfully kills another

in such circumstances as not to constitute murder is guilty of manslaughter." Manslaughter can

be said to occur either voluntarily or involuntarily; involuntary manslaughter occurs when a

person kills another person intentionally but in response to provocation, while involuntary

manslaughter occurs when a human being accidentally kills another person; in this case, the

accused did not intend or foresee the consequences of his actions, but some blameworthiness

could be attributed to his actions or omissions.

2.2 Conceptual Structure

22
The defense of provocation has become more complicated throughout time, and several theories

and interpretations have been used to define what provocation actually is. The following

connected theories will be addressed in order to comprehend the dynamics and history of

provocation:

Theory of Loss of Self-Control

Taking into consideration the standard of a reasonable man, this theory asks what a reasonable

man in the defendant's circumstances would do. This dual standard seeks to balance human

emotional responses with societal expectations. This theory is one of the foundational theories of

the defense of provocation. It asserts that a defendant who responds to a provocative act suffers

from a temporal emotional disorder or disturbance, which unintentionally impairs his ability to

control his emotions.

Theory of Impaired Judgment

The impaired judgment theory, which was developed by jurists recently and is based on

psychological research on dual-process models of decision-making, contends that people who are

provoked are likely to not only lose self-control but also suffer from impaired judgment as a

result of their emotional state. This viewpoint moves the emphasis from evaluating the loss of

self-control to comprehending how emotions can skew logical decision-making processes.

Chapter Three

Nigeria's Legal Framework for Provocation

3.1 The Federal Republic of Nigeria's 1999 Constitution

The Nigerian legal system of based on a hierarchy of laws, the Constitution of the Federal

Republic of Nigeria 1999, is the principal legislation governing every act, conduct and even

23
legislations within the territorial boundaries of Nigeria. This has made the constitution to be

regarded as the 'Grund norm ' which is a Latin phrase for “highest law” thus, connoting that the

constitution is the highest law of land. The supremacy of the constitution is well spelt out in

section 1 which provides that "This Constitution is supreme and its provisions shall have binding

force on the authorities and persons throughout the Federal Republic of Nigeria." The

constitution's scope of applicability of is quite vast as it extensively operates within the federal

Republic of Nigeria. The justification of the constitution's title of being the Grund norm in

Nigeria, is evidenced in section 1 (3) which states that if any other law is inconsistent with the

provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the

extent of the inconsistency, be void. From the foregoing, it is clear that the constitution reigns

Supreme over the Nigerian Criminal Code Act 1999, and every other legislation in Nigeria

enacted to regulate crime and criminal activities, therefore, their provisions must be in

conformity with the constitution. In Nigeria, the constitution empowers the national assembly to

make laws and this nothing in this constitution or even in any other legislation shall empower the

National Assembly or any other law-making body to enact any law that would have a

retrospective effect.

The fundamental Human Rights of Nigerians is enshrined in the CFRN 199, Chapter IV, with

section 33, providing for the right to life, the section expressly provides that; Every person has a

right to life, and no one shall be deprived intentionally of his life, save in execution of the

sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

Furthermore, the constitution made it clear that this rights are not absolute, in other words, they

are subject to some exceptions, such as that; a person would not be said to have been deprived of

the right to life, were homicide occurs in defence of any person from unlawful violence or for the

24
defence of property, for the defence of any person from unlawful violence or for the defence of

property, or for the purpose of suppressing a riot, insurrection or mutiny. Where person is

charged for a criminal offence, section 36 provides for the fundamental human right of fair

hearing, so where a person is suspected, arrested and charged for committing a civil wrong or a

criminal offense, such a person is entitled to be brought to court. In this light, where a person is

charged for murder or manslaughter, the constitution grants the person the right to fair hearing

pursuant to the above stated provisions. It is also provided that Whenever any person is charged

with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in

public within a reasonable time by a court or tribunal. The constitution in section 36 (5), places a

presumption of innocence on the accused until proven guilty and in proving the guilt, it must be

done beyond reasonable doubt. In defending his or her case, the constitution gave the options of

self-representation or the representation by a legal practitioner of the accused choice. Where a

person has been tried from murder, manslaughter or any criminal offense, before a court of

competent jurisdiction or tribunal and either convicted or acquired, such a person shall not be

tried again for same offence with the same ingredients. This provision of the Nigerian

constitution is in existence to prevent double jeopardy at the detriment of the accused.

The defense of provocation is typically used by an accused person to demonstrate that an act of

the deceased caused an action that led to the unlawful homicide, even though section 36 (11)

states that no one who is tried for a criminal offence shall be compelled to give evidence at the

trial. In this case, the accused would have the burden of proving all the elements of provocation

that the court highlighted in the Oladipupo v. The State case, which are: (i) the act must have

been committed in the heat of passion; (ii) the act must have been caused by sudden provocation;

25
(iii) the act must have been committed before the time for passion to cool; and (iv) the mode of

resentment must be proportionate to the provocation offered.

3.2 The 1990 Criminal Code Act

The Criminal Code and the Penal Code are the two main laws or codes that govern the Nigerian

criminal justice system. The former regulates criminal activities and imposes punishments when

they occur in the southern part of Nigeria, while the latter applies in the northern states. Both

codes were enacted based on the unique characteristics of each Nigerian region, though the

former was modeled after English laws because of colonial dependency. The criminal code was

enacted to serve as a framework for punishing offenses, and the Act defines an offense as an act

or omission that makes the perpetrator or the emission liable to punishment under this code, or

any Act, or Law.

Unlawful homicide is an offence under the Act, section 306 provides that it is unlawful to kill

any person unless such killing is authorized or justified or excused by law. For a killing to be

justified under then law, it must be one that occurs in circumstances that are considered right,

and the person who committed the act is not criminally liable, examples of such as; self-defense,

defence to property, during the suppression of riot and homicide committed during the

enforcement of a court order, etc. The act provides justifies the killing of a person who has

committed a felony, it states that;" When a peace officer or police officer is proceeding lawfully

to arrest, with or without warrant, a person for an offence which is a felony, and is such that the

offender may be arrested without warrant, and the person sought to be arrested takes to flight in

order to avoid arrest, it is lawful for the peace officer or police officer and for any person

lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of

the person sought to be arrested, and, if the offence is such that the offender may be punished

26
with death or with imprisonment for seven years or more, may kill him if he cannot by any

means otherwise be arrested." This falls within the purview of lawful homicide contemplated by

the Act.

A plea of self-defense is different from that of provocation, though both acts are usually

provoked by the action of the deceased. In the Criminal Code, s 287, states that where a person

(the deceased) unlawfully assault another or has provoked an assault from another (the accused),

and the said assault of the deceased is such that it causes reasonable apprehension of death or

grievous harm, and this consequently provokes the accused to believe, on reasonable grounds,

that it is necessary for his preservation from death or grievous harm to use force in self-defence,

the accused in such a situation will not be criminally responsible for using any such force as is

reasonably necessary for such preservation, although such force may cause death or grievous

harm. This is a justification for self-defence. This defence to a charge of murder is not always

available for case of homicide, for a person to be exonerate based this defence, it must be

established that the force used was reasonable and necessary to save the accused from danger.

Provocation is a mitigating defense; however, a party pleading provocation must sufficiently

establish its element in order to be successful. Section 314 of the Criminal Code states that a

person is not deemed to have killed another if the death of that other person does not occur

within a year and a day of the cause of death. The act introduced this provision to ensure that an

accused person does not get convicted for the consequences of another's action. The defense of

provocation arises when the deceased's action caused the accused to lose his self-control and act

in the heat of passion before the time for passion to cool.

3.3 The 1960 Penal Code Act

27
The penal code is the principal legislation governing criminal proceedings in the Northern parts

of Nigeria. It was modelled based on the customs and peculiarities of the Northern states of the

country. Like its southern counterparty, it has provisions for both lawful and unlawful homicide.

Section 47 provides that; a person would not be held liable for an injury which results to death if

such injury was inflicted to the victim on a reasonable ground without any intent to commit a

crime or where such injury was inflicted as a result of self-defence or defence to property. This

was further provided for in section 59 which states that "Nothing is all offence which is done in

the lawful exercise of the right of private defence." This right to 'private defence' is subject to the

limitation of it being proportional to the thing or person sort to be defended in such

circumstance. Section 63 provides that a person will be liable for the consequences of an act

purported to be done out of private defence if there is time to have recourse to the protection of

the public authorities. This means that such a person would be liable for injuries or murder of the

victim in such situation.

Section 220 of the code posits that a person would be liable for culpable homicide where the

person does an act; with the intention of causing death or such bodily injury as is likely to cause

death, with the knowledge that he is likely by such act to cause death; or doing a rash or

negligent act, commits the offence of culpable homicide. Furthermore, the punishment for

culpable homicide as stated in section 221 of the code is the death of the accused, save as for the

exception of provocation provided for in section 222 of the Penal code 1960. The elements of

Provocation spelt out in the Penal code are the same with that of the Criminal Code. The penal

code states that; Culpable homicide is not punishable with death if the offender whilst deprived

of the power of self-control by grave and sudden provocation causes the death of the person who

gave the provocation or causes the death of any other person by mistake or accident. The

28
punishment the Penal code prescribes for culpable homicide is quite strict compared to its

counterpart that prescribed the punishment of imprisonment on conviction. Pursuant to section

222 (2) a person would not be liable to the ultimate punishment of death where he acted in good

faith in the exercise of the right to self-defence even though the action exceeded that provided for

under the law. The exoneration from death punishment after being found guilty of culpable

homicide, does not amount to total exoneration from the punishment. s 224 prescribed the

punishment of life imprisonment where a person is found guilty, by implication, a successful

plea of provocation would only mitigate the death penalty and substitute it with the punishment

of life imprisonment.

3.4 The 2020 Nigerian Police Act.

Section 4 of the Act outlines some of the many duties of the Nigerian police, including the

protection of life and property, maintaining public safety, maintaining law and order, preventing

and detecting crime, and protecting the rights and freedoms of every citizen as stipulated in the

Nigerian constitution, the African Charter on Human and People's Rights, and any other law.

Section 31 states that if a real person has been reported to the police or brought to the police

station on the suspicion of committing an offense, the police have the right to conduct an

investigation into that person.

In carrying out their duties, a Nigerian police officer has the right to arrest a suspect to whom

he/she suspects of committing an offense, even without warrant so long as it is done on

reasonable grounds. Section 38 (1) (b) provides that a police officer shall arrest a person without

warrant where the person commits the said offense in the presence of the officer. This is

sufficient reason for an arrest; therefore, it would be irrational for a warrant to be issued before

29
an arrest is affected in such a circumstance. Under the Act, section 39 grants private individuals

the right to arrest a person who commits an offense in the presence of such individual, or where

there is reasonable ground suspect that the accuse has committed an offense of which would

warrant and arrest from the Nigerian police force. This provision is in no way related to the

popular dehumanizing act of 'jungle Justice' of which is a form of unlawful homicide. It means

that where a person commits a crime the individual(s) has the responsibility of arresting and

handing over a suspect to the Nigerian police. . While in civil cases, it is usually a private

individual, a company or a business that institutes an action, in Criminal cases actions are being

instituted by the States through the Attorney General of the Federation or the Attorney General

of a State, as a case may be, this is pursuant to section 174 and section 211 of the CFRN 1999,

and section 106 of the Administration of Criminal Justice Act. Subjects to be above stated

provisions, section 66 of the Nigerian Police Act 2020, a police officer who is a legal practitioner

qualified as one under the legal practitioners Act, shall prosecute an accused weather or not the

information or complaints is laid in his name. The above provision extends the power of the

Nigerian police beyond investigation and also includes the right to in accordance to the

provisions of the law.

Chapter Four

PROVOCATION PROBLEMS AND OPPORTUNITIES IN HOMICIDE CASES

4.1 The Burden of Proof Issue

The Evidence Act (as amended) 2011 is the main piece of legislation governing the handling of

evidence in Nigerian judicial proceedings. Section 131 (1) of the Act states that "whoever desires

any court to give judgment as to any legal rights or liability dependent on the existence of facts

30
which he assets, shall prove that facts exist." This is a fundamental concept used in Nigerian

judicial proceedings to determine which party would be responsible for proving the facts of a

case. In general, the burden of proof in Nigeria lies on the shoulders of the party asserting the

existence of a fact in question.

The burden of proof is the same in criminal and civil cases, but the standards are different: in

criminal cases, a party must prove a fact beyond a reasonable doubt, whereas in civil cases, the

standard is simply on the balance of probability. According to Section 135(3) of the Evidence

Act, the burden of proof shifts to the defendant if the prosecution establishes the commission of a

crime beyond a reasonable doubt.

The court defined proof in the Enemchukwu v. Okoye case as the procedure by which the

presence or non-existence of facts is proven to the satisfaction of the court. The legal word

"burden of proof" has two meanings. It refers to the responsibility or duty to prove a case in the

first sense. This is the duty placed on a party to convince the court that the material facts that

make up his whole case are true, either by a preponderance of the evidence or beyond a

reasonable doubt, in order to establish his case and obtain a favorable ruling. This weight is

referred to as "the burden on the pleading" or the general burden.

The phrase "burden of proof" can also refer to the responsibility to present evidence on a certain

fact or matter. In certain situations, this evidence must be adequate to establish the fact or issue,

while in other situations, it just has to be sufficient to support a conclusion that favors the party

bearing the burden. We refer to it as the evidentiary burden. The term is more frequently used in

this manner. If a defendant chooses to utilize provocation as a defense, it is his responsibility to

demonstrate that the alleged behavior was indeed caused by provocation. Before the court, the

defendant must adequately prove his defense of provocation; this is typically not a

31
straightforward procedure. There are both subjective and objective components to the

justification of provocation. The subjective test, which focuses only on the defendant, examines

whether the provocation truly caused the defendant to lose self-control. Often known as the

"reasonable man's" test, the goal considers whether a reasonable person would have been

prompted to lose self-control in the same circumstance. Based on the adage that "even the devil

knows a man's heart," this presents a challenge for the court, which is cautious to ensure that

justice is served. As a result, the court would need to be appropriately led in weighing the

defendant's defense. The burden of demonstrating reasonable doubt transfers to the prosecution

when the defendant argues and proves young reasonable doubt about the components of

provocation, as is the case with section 135 (1) mentioned above. This may be a very stressful

procedure.

4.2 How the General Defenses of Criminal Liability Affect the Homicide Charge

Numerous broad defenses exist that can be used against a variety of criminal accusations. Their

significance to a plea of provocation under the Nigerian criminal justice system and their effect

on the criminal accusation of homicide would be investigated. Examples of the aforementioned

defenses include the following:

4.2.1 Error

There are two types of mistakes that can be used as defenses in criminal law: mistakes of fact

and mistakes of law. Although the former can clear an accused person of a criminal accusation,

the latter often cannot do so since ignorance of the law is not a valid defense. See section 23 of

the Criminal Code which states that "Ignorance of the law does not afford any excuse for any act

or omission which would otherwise constitute an offence, unless knowledge of the law by the

offender is expressly declared to be an element of the offence. “Mistakes of fact arise when a

32
criminal defendant misunderstood some fact that negates an element of the crime. This occurs

where a defendant genuinely acts on the mistaken believe as to the existence of facts. A mistake

of fact is a type of legal criminal defense that can sometimes demonstrate that the defendant

lacked a certain mindset required to be part of the crime. The provisions of section 24 of the

Criminal Code proves be pivotal in regards to defense of an unintended act like in the case of the

defense of mistake and accident. The provision states that; "Subject to the express provisions of

this code relating to negligent acts and omissions, a person is not criminally responsible for an

act or omission, which occurs independently of the exercise of his will, or for an event which

occurs by accident." In the case of Iromantu v State, the deceased engaged in a struggle with the

appellant for the appellant's gun, in an attempt to recover it from him, the appellant accidentally

touched the trigger and the gun went off, this resulted to the death of the deceased. The court

acquitted the appellant on the ground that the prosecution failed to prove intent on the part of the

accused, or that he was negligent or reckless in his conduct. A defendant who wishes to plead a

mistake of fact must be able to establish that the mistake was both honest and reasonable. This

point was buttressed in the case of Gadam v R, where the accused believed that the miscarriage

and mortal illness of his wife was due to the witchcraft of an old woman, he killed the woman

with a hoe. It was a finding of facts that the accused believe of the woman being a witch was

bona fide and that the belief in witchcraft was prevalent in his community. However, the court

held it to be unreasonable to acquit the accused on such belief, in the court opinion, doing so

with establish a bad precedent. Therefore, the defense of mistake failed.

The case of Ogbu v. R. provides a good precedent for why the court should reject this defense,

unless specifically allowed for. In the aforementioned case, the accused claimed ignorance,

arguing that he was unaware that it was illegal to pay a bribe to get appointed as a village

33
headman and thus a tax collector. The trial court cleared him, but the Federal Supreme Court

found him guilty of his corrupt act of bribery after an appeal. From the foregoing, it is clear that

the defense of mistake arises when the party acted honestly and in good faith, which is very

different from the defense of provocation, where the party acts out of loss of self-control; the

assault in provocation is intentional, whereas in a mistake, and the consequences of both states of

mind are different.

4.2.2 Protection of Oneself

Self-defense is a key defense available to an accused when brought to court for a criminal charge

especially in cases of homicide. It is a fundamental concept in the legal system that allows

individuals to protect themselves from harm or threat without facing criminal liability. However,

the use of self-defense is limited, and there are legal boundaries that individuals must adhere to

when employing it. To successfully claim self-defense, the defendant must prove four elements.

First, with exceptions, the defendant must prove that he or she was confronted with an

unprovoked attack. Second, the defendant must prove that the threat of injury or death was

imminent. Third, the defendant must prove that the degree of force used in self-defense was

objectively reasonable under the circumstances. Fourth, the defendant must prove that he or she

had an objectively reasonable fear that he or she was going to be injured or killed unless he or

she used self-defense. Section 33(2) (a) of Constitution of the Federal Republic of Nigeria

provide for the right to self-defense by stating that;

If someone dies as a result of the use, to the extent and under the circumstances allowed by law,

of force that is reasonably necessary—for the defense of any person from unlawful violence or

for the defense of property—they will not be considered to have been deprived of their life in

violation of this section.

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According to the Criminal Code, a person is not criminally liable for an act or omission if it is

reasonably necessary to fend off actual and unlawful violence that is threatened to him or to

another person in his presence. Humans have an innate instinct to defend themselves from

danger.

In R v. Josiah Onyeamaizu, it was decided that "such a person may hope for clemency from

other quarters; he cannot expect it from the law." Section 286 of the Criminal Code also justifies

an assault that was caused by a reasonable fear of death or grievous harm to the accused. This

section is not available to someone who is abnormally nervous or excitable or who overreacts

and causes the death of another after being attacked by a relatively minor assault. If it were

otherwise, it would be shocking and dangerous. The Supreme Court ruled in Augustine Duru v.

State that the test of what constitutes defensive force under Section 287 of the Criminal Code is

objective, and that even if the appellant's evidence that the deceased hit him with fists is

accepted, it does not objectively justify shooting the deceased to death. Furthermore, the legal

right to kill in self-defense cannot be made to depend upon the temperament, nervous or

courageous, robust or weak, phlegmatic or excitable, of the individual killer.

4.2.3 Intoxication

When someone has consumed enough alcohol or drugs to impair their mental and physical

capacity, they may experience diminished senses, poor reasoning, slower reflexes, confusion,

and loss of inhibitions. The defense of intoxication in criminal law is quite complicated and

varies depending on whether the intoxication was voluntary or involuntary.

In Nigerian criminal law, the defense of intoxication is limited. Voluntary intoxication does not

exempt a defendant from liability unless it can be shown that the intoxication was not self-

induced or resulted in temporary insanity, preventing the individual from understanding their

35
actions or knowing they were wrong. Section 29 of the Criminal Code provides that the defense

of intoxication would not avail the accused except in situations mentioned under the section.

Section 29 (2) (a) provides that Intoxication shall be a defense to any criminal charge if by

reason thereof the person charged at the time of the act or omission complained of did not know

that such act or omission was wrong or did not know what he was doing and the state of

intoxication was caused without his consent by the malicious or negligent act of another person.

Based on this provision, is clear that the law would not exonerate an accused who commits an

offense like homicide based on intoxication induced on himself. Therefore, voluntary

intoxication would not provide a defense for an accused. In the Gold coast case of Kofi Mensah

v R, where the accused disappointed in love, drank illicit gin, and invited the woman in question

to go and pick mushrooms at his uncle's farm, on reaching there, they father drank palm wine, at

some points, he brought out his gun and shot her, in his defense, he claimed not to have known

what had happened stating that it was the effect of the alcohol. The court convicted him on the

grounds that voluntary intoxication is not a defense to unlawful homicide.

4.2.4 Mishap

An accident can be simply said to be an unwilled act in other words, it is an act which occurs

contrary to the intent of a person. This act is usually not attributed to the fault of anybody except

in strict liability cases. Acts which occur accidentally are said to be without mens rea. In some

cases, the defense of accident might be available in relation to an unintentional consequence of

an intentional act, that is, it was unintentional that certain consequences would flow from the

initial intended act. In some circumstances this may negate criminal liability in relation to a

serious charge requiring intention, but leave an accused person susceptible in relation to a lesser

36
charge, that might only require recklessness or negligence. The defense of accident is provided in

the Nigerian criminal code, by virtue of section 24 which provides that; Subject to the express

provisions of this code relating to negligent acts and omissions, a person is not criminally

responsible for an act or omission, which occurs independently of the exercise of his will, or for

an event which occurs by accident. The implication of these is that, a successful plea of accident

would exonerate an accused of any criminal charge levied against him/her.

4.2.5 Madness

The defense of insanity is a legal argument asserting that a defendant was not responsible for

their actions due to a severe mental disorder at the time of the crime. This defense contrasts with

diminished capacity, where intent is reduced but not entirely negated. This defense is unique in

that it may be raised by the prosecution and judge in addition to the defense. Indeed, it is

generally the defense seeking to avoid a finding of insanity and often the defendant will change a

plea to guilty to avoid a finding of insanity. It is not enough for the accused to show that he is

suffering from mental disease or natural infirmity, this would not automatically entitle him to a

relief of criminal responsibility. For a defendant to be exonerated from a criminal charge using

the plea of insanity, he must be able to establish the three requirements set forth in section 28 of

the criminal code which provides that; A person is not criminally responsible for an act or

omission if at the time of doing the act or making the omission (1) he is in such a state of mental

disease or natural mental infirmity as to deprive him of capacity to understand what he is doing,

or (2) of capacity to control his actions, or (3) of capacity to know that he ought not to do the act

or make the omission.

Guobadia V. State, the Apex Court held that “Evidence that an accused had a mental disorder

which does not show that the disorder deprived him of the capacity to understand what he was

37
doing and to know that he ought not have done the act called in question is no satisfactory

evidence of defense of insanity under the law” the court would at first instance presume

everyone to be of sound mind until the contrary is proven. By virtue of section 139 (1) of the

Evidence Act 2011, where a person is charged for a criminal offense, the burden of proving that

such offense was committed in a circumstance which the law provides an exception lies on the

defendant asserting the existence of such circumstance. Furthermore, section 139(3) (c) the onus

of proving the insanity of the accused lies with the defendant and not the prosecution. A

successful insanity defense results in a special verdict of “not guilty by reason of insanity”,

which typically results in the defendant’s confinement to a mental institution rather than an

absolute acquittal. This is the rationale behind why this defense can also be pleaded by the

prosecuting party.

4.2.6 Autonomy

There are situations where an accused could be said to have acted involuntarily. When an act is

committed in the state of automatism, this means that the person committing the offence did so

without any control or direction over what was being done. That is, their actions were

involuntary and independent of their will. Automatism is a legal term used to describe a situation

where acts or behavior have occurred without the volition or will of the accused. The

determining factor is the lack of exercise of the accused’s will and not a lack of consciousness or

knowledge on the accused’s part. This defense is within the provisions of section 24 of the

Criminal Code, which provides that where an act or omission is independent of the exercise of

the defendant's will, he will not be liable. In the case of Bratty v attorney General of Northern

Ireland, the English court held that a defense of automatism can be defined as a "unconscious

voluntary action" which does not results from a disease of the mind and which is a defense

38
because the mind does not go with what is being done. In this case, Lord Denning made it clear

that an act is not involuntary simply because the accused does not remember it, nor simply

because he could not control it, nor simply because it is unintentional, or its consequences are

unforeseen.

4.3 The Defense of Provocation's Restrictions and Limitations

Although provocation is not a complete defense against a murder allegation, a party wishing to

use it must be able to prove some aspects of provocation. The defense of provocation has various

restrictions, some of which are as follows:

1. Not a full defense: a successful plea of the defense of provocation does not absolve the

accused of the punishment of unlawful homicide; rather, it substitutes the crime and punishment

for murder with the lesser crime of manslaughter in a case of unlawful homicide, thereby

reducing the punishment of murder, which in some jurisdictions is death.

2. Provocation not sought: If the accused is the one who initiated the provocation, he cannot be

considered to have been legitimately provoked; in other words, provocation cannot be expected

or sought for. If the opposite is demonstrated, the court would reject the defense's application.

3. Non-law enforcement provocation:

It would be insufficient for the accused to say that he was provoked by the officer's acts, even if

the provocation actually happened, if the illegal murder was the killing of a law enforcement

officer who was slain while doing his duties.

4. Must demonstrate proportionate response: The accused must demonstrate that his response

was appropriate in relation to the provocation. If the accused responds in an unreasonable

manner, he will be held accountable for murder; therefore, a slap should not be returned with a

stab. A party must respond proportionately; therefore, if the deceased's act poses a threat to life,

39
it would be reasonable for the accused to react in a way that could cause the deceased's death; in

this instance, it will be deemed self-defense.

4.4 Issues with the Provocation Defense in Unlawful Homicide

The Nigerian criminal justice system has recognized the value of provocation as a defense for

unlawful homicide because it considers various factors that are reasonable enough to lessen the

weight of an act that should have ordinarily resulted in murder. Nevertheless, the application of

this defense has encountered several difficulties, some of which will be covered below.

Provocation has been widely criticized for being subjective. Subjectivity in the context of the

provocation defense means that what one person views as a sufficient trigger for losing self-

control may not be the same for another person. This variability stems from differences in the

court's and the party's cultural backgrounds and societal norms; for example, an insult that could

deeply offend one person may be considered trivial by another, and what causes a strong

emotional reaction in one person may not have the same impact on another. As a result, it is

difficult for courts to establish a consistent standard for what makes "adequate provocation."

Subjectivity in relation to the court and judicial proceedings generally can result in inconsistent

judicial rulings because, in most cases, it is difficult to apply the "reasonable mans" test

adequately, leaving it up to the court's discretion to decide whether the provocation in question is

sufficient for an average person to lose self-control under the circumstances of the case before

the court. It is undoubtedly true that interpretations will differ greatly, and depending on the

viewpoints of those involved in the legal process, this inconsistency can result in different

outcomes for cases with similar facts, thus creating a challenge for judicial precedence.

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Another challenge to the defense of provocation is the requirement that the defendant must have

lost self-control. This requirement can be problematic because its standards tends to be

stereotypical and often in favour of the male gender. The element of self-control is often

associated with gender bias, critics argue that this element is biased towards male reactions,

because the society beliefs that men are more likely to exhibit a sudden, physical loss of control

when provoked. While in contrast, women are expected respond differently to provocation, as it

is believed that they often internalize their emotions or react in a less immediate and overtly

aggressive manner. This difference in response can make it harder for women to successfully use

the provocation defense, as their reactions might not fit the traditional legal expectations of “loss

of self-control.” This bias can lead to unfair outcomes in court, also, this discrepancy can result

in women being less able to rely on the provocation defense, potentially leading to harsher

sentences. The evolving legal standards and systems of various Jurisdictions including Nigeria

has posed to be a major challenge to the application and plea of the defense of provocation.

Historically, the defense of provocation was more acceptable because societal norms were

different. In earlier times, there was a greater tolerance for violent responses to provocation,

often seen as a natural or understandable reaction. This was particularly true in honor-based

cultures where defending one’s honor through violence were sometimes not socially sanctioned.

In the light of the contemporary age, it is expected for individuals to be more tolerable and to

avoid acting in certain ways, people are generally expected to handle conflicts and provocations

without resorting to violence.

4.5 Implications and the likelihood of a successful plea bargain in an unlawful homicide case

As was previously established, homicide is a defense that is utilized by an accused person who

illegally kills another person out of passion before that passion has had a chance to subside.

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Section 131 (1) of the Evidence Act (as amended) 2011 states that "whoever desires any Court to

give judgment as to any legal rights or liability dependent on the existence of facts which he

assets, shall prove that facts exist." This principle, which states that "he who asserts must prove,"

is the foundation for the prosecution's evidential burden of proof in criminal charges. The burden

of establishing provocation as a component of the crime would therefore shift to the accused who

wishes to invoke this defense after the accused's offense has been proven beyond a reasonable

doubt. This is in accordance with the Evidence Act's section 131(2), which declares that "the

burden of proof lies on that person when that person is bound to prove the existence of any fact."

This means that the accused must prove the components of provocation in order to prove to the

court that the conduct that led to the deceased's death were motivated by provocation.

A successful plea of provocation lowers the accusation from murder to manslaughter but does

not absolve the offender of criminal responsibility. In the Umar v. Kano State decision, the Court

of Appeal took this stance, ruling that the defense of provocation does not absolve an offender of

criminal responsibility but rather lessens or diminishes the penalty. "A successful plea of

provocation is not exculpatory; it is a mitigating factor that whittles down punishment for

culpable homicide punishable with death to that of culpable homicide not punishable with

death," the Supreme Court said in a case similar to this one, State v. Da'u. This means that

instead of the death penalty, the accused will get a lower punishment under the law, which might

be life in prison. As a result, it can be said that the defense of provocation is just a partial one

that simply influences the accused's penalty and does not significantly alter the nature of the

offense.

Although both self-defense and attack from provocation may end in the death of the dead, it is

crucial to remember that the results of the pleas for both defenses differ. Self-defense, on the

42
other hand, is a full defense that would completely absolve an accused person of the accusation

of murder, without even lowering it to the crime of manslaughter. Provocation is considered a

partial defense. While provocation is considered illegal as there is no legal basis for it, self-

defense is considered a legitimate homicide. Reducing the punishment or penalties often

imposed for murder, which in most jurisdictions is death, is the main benefit of a successful plea

of provocation.

Chapter Five

Results, Suggestions, and Conclusion

5.1 Findings Synopsis.

The criminal crime of illegal homicide is the main subject of this investigation. As previously

mentioned, there are two main types of homicide: legitimate homicide and unlawful homicide.

A legitimate murder is one for which there is a legal basis; in this case, a person would not be

held accountable for another person's death if it was legally acceptable or excusable. These

discussions are based on the other type of homicide, which is illegal homicide.

This study looked at the defense of provocation, which is accessible to an accused or defendant

who unlawfully murders another person in specific situations that are otherwise thought to be

provocation-related. Since the Nigerian constitution states that nothing is illegal until specifically

stated in a written law, it follows that homicide must be defined as a crime with associated

penalties in order to be considered illegal. This study took into consideration the Federal

Republic of Nigeria's Constitution's section 33, which guarantees the right to life, and section

306 of the Criminal Code Act, which states that it is illegal to kill someone unless it is permitted,

justified, or excused by law, in order to define the crime of unlawful homicide. According to this

study, provocation is never an excuse for killing someone. Therefore, when someone loses

43
control of their emotions before their anger has had a chance to subside, they may claim that they

were provoked, which will lessen the severity of their punishment and change the charge from

murder to manslaughter.

This study considered the dual ideas of mens rea and actus reus when coming to its conclusions.

Mens reas, or the guilty mind, and actus reus, or the guilty act, are said to be the twin elements

that must be present and well established by the accused in order for them to be found guilty of a

crime; failing to do so would be fatal to a criminal charge. It is the burden of demonstrating that

the accused's actions and intentions were provoked when these two components of a crime have

been proven beyond a reasonable doubt. In order to attempt to replace the punishment and

offense of manslaughter with that of murder, the defendant would need to prove all the elements

of provocation.

The study explored the idea of legitimate homicide to obtain a comprehensive understanding of

what homicide comprises. As was previously said, lawful homicide refers to the killing of a

person by another human, but it is now legal. The legal definition of justification is the provision

of exclusions to acts that would not qualify as criminal killing. Self-defense and property

defense are two instances of such exclusions. According to the law, where there is a legitimate

fear and imminent danger to the destruction of one's property, one may act to protect that

property, another person's life, or even one's own. The law in this case does not require the

accused to remain still at his own expense; rather, it expects that appropriate measures will be

taken to prevent injury. The legal killing of a person in accordance with the execution of a court

order is another significant exemption to murder. A person will not be considered to have lost his

right to life if his state happens during the execution of a court sentence, according to Section 33

of the constitution, which guarantees the right to life.

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This study also looked at a number of institutional and legal frameworks that are essential for

defining the idea of illegal killing, including when provocation may be appropriate and the

appropriate penalties. In the process, pertinent clauses from the Federal Republic of Nigeria's

1999 Constitution, the Penal Code of 1960, the Criminal Code Act of 1990, and the Nigerian

Police Act of 2020 were examined from the standpoints of being both unlawful and

institutionally sound. According to this study, the constitution is still the ultimate law and, as

such, all laws in Nigeria must abide by its requirements. Although the defense of provocation is

not expressly covered by the constitution, it does consider situations in which a person's death

might be caused both legally and illegally. For the purposes of this discussion, the constitution

was mostly referred to from the perspective that it is Nigeria's primary regulating law because it

does not specifically address the defense of provocation. Section 36 of the 1999 Federal

Republic of Nigeria Constitution makes it explicit that nothing shall be considered an infraction

unless it is specified in an enactment and has associated penalties. As has been noted, the

Criminal Code and the Penal Code are separate laws that regulate the Northern and Southern

halves of Nigeria, respectively, and are both governed by the constitution. The provision of

section 287 of the penal code was emphasized in this study in order to take note of the

distinctions between a defense of provocation and one of self-defense. Findings reveal that both

provocation and self-defense are reactionary in nature, in other words the defendants in both

defenses apply force on the body of the deceased based on an act of the victim. However, it is

discovered that why is self-defense is based on a threat of physical action against defendant,

provocation might arise based on both conducts and mere words. Also, for self-defense your

applicable, the defendants must prove that there was an actual threat to life and an apprehension

that such a threat would be carried out. Findings reveal that for provocation to be applicable as a

45
defense, the act of the defenders lost b proportionate to the annoyance which led the defendant to

lose self-control.

Regarding the penal code's stance on the idea of provocation, this discussion reveals that while

section 221 of the code clearly states that the death penalty is the punishment for culpable

homicide, section 222 also states that provocation is an exception to both the death penalty and

culpable homicide. Just like its counterpart the criminal code, the penal code does not regard the

defense of provocation as a complete defense, or as being enough to exonerate an accused from

the punishment of unlawful homicide. It only mitigates the harshness of the offense by

substituting murder for manslaughter.

This work also emphasizes the significance of the Nigerian Police Force, which is tasked with

preserving public safety, preventing and detecting crime, protecting life and property, and

defending each citizen's freedom and rights as guaranteed by the Nigerian constitution, the

African Charter on Human and People's Rights, and other laws. Where a person commits the

offence of homicide, it is the duty of the police to arrest such offender, the Administration of

Criminal Justice Act, empowers police officers who are legal practitioners under the legal

practitioners Act, to prosecute criminal offenders. It is important to note that this is not an

automatic right, as it is subject to the approval or discretion of the attorney general of the State or

the attorney general of the Federation depending on the circumstances of a case. Generally, the

law provides that a party who wants the court to give judgment or administer liability in his favor

based on specified facts, has the responsibility of proving such facts before the court. What is

entails is that a party pleading provocation has the onus of proving the elements of provocation

beyond reasonable doubts, as it is the standard in required criminal proceedings.

46
The findings of this work have helped in revealing certain setbacks which the defense of

provocation faces within the Nigerian jurisdiction, some of these findings should be discussed

below;

1. Ambiguity in Legal Standards: The legal standard for determining provocation is undoubtedly

quite ambiguous. However, in an attempt to address this ambiguity, the law developed an

objective standard known as the reasonable man's test. However, this test has not been adequate

to direct the court's thinking when deciding what provocation is. This ambiguity has from time to

time has led to inconsistent application of the concept of provocation. An example of this is the

ruling of the court in the case of Mancini v Director of Public Prosecutions, where the trial court

held that it was reasonable for the accused to stab the deceased based on the provocation of a

slap.

2. Provocation arising from domestic violence: based on the analysis of a significant number of

Nigerian case laws on provocation arising from domestic violence, the courts have been seen to

apply more lenient standards in cases where a male defendant claims provocation based on minor

acts of the female spouse such as mockery of infidelity. This seems to water down the standards

necessary for establishing the defense.

3. Difficulty in Proving Loss of Self-Control: For the defense of provocation to succeed, the

defendant must show they experienced a temporary loss of self-control due to the provocative

act. However, proving such a loss can be complex, especially as it requires examining the

defendant’s psychological state at the time of the offense. This seems to be highly impracticable,

The above findings have prompted the necessity of a reform in the Nigerian judicial system as

well as the amendments of the necessary legal framework to reflect an express stipulation of

guidelines on which the defense of provocation would operate.

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5.2 Recommendation.

Having taken into consideration the summary of findings in this discourse, it has become

pertinent to suggest the following recommendations in order to enhance the application of the

defense of provocation in the Nigerian criminal justice system;

Time Frame for Cooling Off: The legislature should establish a clear time frame within which

the provocation must occur and the reaction must follow. This would help in putting to rest the

various controversies as to the amount of time needed for the element of cooling off to elapse.

Proportionality Rule: Emphasis must be placed on the proportionality rule, this is to ensure that a

defendant’s response to provocation is proportional to whatever led to such Provocation. There

must be an equivalence between the provocation received and the defendant’s response to it.

Public Awareness: The government should take up the responsibility of conducting public

awareness programs and workshop in relation to the avoidance of crime and the punishment for

engaging in criminal activities. The public should also be educated about the defense of

provocation, it’s elements and limits.

Amend Sentencing Guidelines to Reflect Severity of Provocation: it is recommended that judges

should have the flexibility of sentencing based on the degree of provocation. The defense of

provocation is made open so any party who can establish the existence of the elements of

vocation in his action. However, it is opined that judges should apply discretion based on the

circumstances of each case, to either lessen or increase the severity of the consequence. Also,

there should be a guideline for the minimum punishment after a successful plea.

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Differentiate Provocation from Preexisting Hostility: there should be a clear statutory definition

distinguishing provocation from pre-existing hostility, a defendant who is quickly hostile or who

has a quick temperament should not be allowed to rely on the elements of provocation such as

loss of self-control. Also the court should work on practical ways of determining how a

reasonable man would act in different situations.

5.3 Conclusions.

Conclusively, while the defense of provocation plays a crucial role in the Nigerian legal system

by recognizing the human vulnerability to sudden emotional impulses, its application requires

careful reform to prevent abuse and ensure justice. Addressing the inherent setbacks through

clearer definitions, proportional response requirements, standardized judicial guidelines, and

cultural sensitivity will strengthen the fairness and consistency of this defense. The refining of

the legal framework and other related parameters around this defense of provocation Nigeria

would aide in enhancing the integrity of the Nigerian criminal justice system, thus, balancing

empathy for human frailties with accountability for actions. Implementing these reforms will not

only enhance the credibility of the provocation defense but also foster a more equitable and

transparent legal environment where justice is served and manifestly seen to be served. A

thorough study of the findings in this study, accompanied with the application of the

accompanying recommendations would serve as practical solutions towards remedying the

challenges faced in applying this defense in the Nigerian justice system.

49
50
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