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Keywords: PROVOCATION AS A DEFENSE TO CRIMINAL LIABILITY
Provocation on its own it not a total defense as to make the accused discharged of his guilt. It reduces murder to manslaughter. This essay considers the adequacy of this defense by examining it under the penal laws of Nigeria and different centers.
The general requirement is that of the deceased must have been caused by accused upon provocation induced by the deceased himself and this must be offered before the accused had time for his passion to cool down. The injury inflicted must also be proportional and must be one as would have caused a reasonable man to resort to the same consequence
The adequate of this defense, in the light of the scope of this essay is purely a psychological question. The test of provocation is inadequate. It is plainly illogical not to recognize the fact that different people react differently to stimuli and the law, by its hording expects a man dethroned in his reasoning faculty to inflict a reasonably proportional injury which only a reasonable man in his senses could do.
The aim and objective of this work is to access the meaning of the term provocation as provided for under the penal and criminal codes and other relevant statutes, case law and by various author, its nature, element and the condition under which the defense can avail a person from criminal liability.
TABLE OF CONTENTS
TABLE OF CASES
TABLE OF STATUTES
LIST OF ABBREVIATION
TABLE OF CONTENTS
1.1.0: BACKGROUND TO THE STUDY
1.2.0: OBJECTIVE OF STUDY
1.3.0: FOCUS OF STUDY
1.4.0: SCOPE OF STUDY
1.6.0: LITERATURE REVIEW
1.7.0: DEFINITION OF TERMS
DEFENCES TO CRIMINAL LIABILITY
2.1.0: DEFINITION OF CRIME
2.2.0: GENERAL PRINCIPLES OF CRIMINAL LIABILITY
2.3:1: ACTUS REUS
2.3:2: MENS REA
NATURE OF PROVOCATION
3.1.0: DEFINITION OF PROVOCATION
3.2.0: DEFENCE TO PROVOCATION
3.2:1: DEFENCE TO PROVOCATION UNDER THE PENAL CODE
3.2:2: DEFENCE TO PROVOCATION UNDER THE CRIMINAL CODE
THE BURDEN OF PROOF TO PROVOCATION
4.I.0: BURDEN OF PROOF IN CRIMINAL LIBILITY
4.2.0: EXCEPTION OR EXEMPTION TO THE BURDEN OF PROOF IN
4.3.0: THE BURDEN OF PROOVING THE DEFENCE OF
4.4.0: EFFECT OF A SUCCESSFUL PLEA OF
TABLE OF CASES
• AKANNI OGUNDIMU vs. STATE (1979) 13 C.A.12
• AIWORO vs. STATE(1987) 2 NWLR 526
• AIGUREGHI vs. THE STATE (2004) 1 (Pt. i) 65 at 86 ALA CHUKWU vs. THE STATE (1990) 12 SCNJ P.71
• BABUGA vs. STATE (1996) 7 NWLR (PT 460) 279
• CHANKALL vs. R (1955) A.C. P.206
• DAN-SHALLAH vs. STATE (2007) 12 MJSC 1
• EDEMINE vs. THE STATE (1996) 3 NWLR (Pt. 438) 530 at 539
• EJALOFU vs. QUEEN (1962) 1 ALL NLR P.22
• EKEPEYYOUNG vs. STATE (1993) 2 NWLR pt. 229 at 513
• GARUBA vs. THE STATE (2000) FWLR (Pt.24) 1405 at 1450
• JOHNSON vs. C.O.P (1960) WWLR 118
• LADO vs. STATE (1999) NWLR (PT 619)369 at 379-380.
• KWAKU MENSAH vs. R (1946) A.C 83 at 91
• MATHEW ONAKOYA vs. R (1957), 4 FSC 150
• NGA’ABA vs. QUEEN (1969) NNCN 97
• NIGERIAN AIR FORCE vs. OBIOSA (2003) 1 SC (Pt. ii) 145 at 146
• NWEDE vs. STATE (1985) 3 NWLR (Pt. 13) P.144
• OBIAKOR vs. STATE (2002) 6 SCJN P.193 at202
• OLUDAMILOLA vs. STATE (2010) 3 MJSC (Pt.11) 108 at 120
• ONIYA vs. STATE (2006) 2 WNLR (PT 991) 271
• ONUBOGU vs. STATE (1974) 9 SC
• OKEKE vs. STATE (2003) 2 SC 63 at 73
• ONYEKWE vs. STATE (1988), 1 NWLR 565
• R vs. ADEKANMI (1954) 17 NLR 99 R vs. ADELODUN (1959) NWLR 144
• R v. AFONJA (1955), 15 W.A.C.A. 26
• R vs. BASSEY (1963) 1 All NLR 280
• R vs. BASIL RANGER, LAWRENCE (1933) II NLR 6; (1933) AC
• R vs. EBOK (1950) 19 NLR 84
• R vs. GREEN (1955) 15 WACA 73
• R vs. OBIASE (1938) 4 W.A.C.A. P.16
• R vs. ONUOHA (1938) 3 W.A.C.A. P. 88
• SHANDE vs. STATE (2005) 22 NWLR (PT 11) 756
• STEPHEN EMOGA vs. STATE (1997) 7 SCNJ.518
• SUNDAY OMENIMU vs. STATE (1965) NMLR 365
• URAKA vs. STATE (1976) 6 SC 195
• UWAGBE vs. STATE (2008) MJSC (1) P. 191-192
TABLE OF STATUES
Criminal Code Act Cap „C 38‟ LFN. 2004
Children and Young Person‟s Act 1933
Criminal Damage act 1971
Constitution of federal republic of Nigeria 1999
Evidence Act Cap 62, LFN, 1958
Evidence Act Cap E14 LFN 2001
Penal Code Cap P3 LFN 2004
Road traffic Act 1958
LIST OF ABBREVIATIONS
AC – Appeal Cases
ALL ER – All England Report
C.C. – Criminal Code
C. J – Chief Justice
E A – Evidence Act
E D – Edition
FWLR – Federation weekly Law Report
L F N – Laws Federation of Nigeria
MSJC – Monthly Judgment of Supreme Court
NWLR – Nigerian Weekly Law Report
P.C – Penal Code
Q B D. – Queens Bench Division
SEC. – Section
S C – Supreme Court Cases
SCNJ – Supreme Court Cases of Nigeria Judgment
WRNLR – Western Region Nigeria Law Report
CHAPTER ONE GENERAL INTRODUCTION 1.0.0: INTRODUCTION
It is a grievous offence and a serious crime under the common law for a person to cause the death of another person and no defense will avail such person. However, it soon developed that there is a rebuttable presumption that practically speaking every common law crime (offense) requires adequate proof of guilty soul.
Generally, the presumption of the law is that a man intends the natural consequences of his act. The canal principle of criminal law of intention as it is in the legal maxim “actus non fact reum nisi men sit rea” which means an act does not make a person legally guilty unless the mind is legally blame worthy.
The law says where a person kills another in circumstances which but for provision of the section, it would give rise to murder. There are certain unlawful killing which does not amount to murder section 317 provides that any unlawful killing which does not amount to murder is manslaughter. Manslaughter may be voluntary or involuntary; involuntary manslaughter covers cases in which there is no intention to kill or cause grievous harm. Voluntary manslaughter on the other hand occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation.
Thus the provision of section 318 4of the Criminal Code is to effect that a person is guilty of manslaughter only if he unlawfully kills another in circumstances which would otherwise have constituted, Murder, so far it is done in the heat of passion caused by sudden provocation and before there is time for his passion to cool. However, before the defense of provocation can avail a person, the test to be applied is to see what effect the act or series of acts of the decreased would have on a reasonable man, so that an unusually exactable or pugnacious person will not be able to rely on it as a defense to charge unless the provocation was such as to have led an ordinary person to act in the way the accused did.
It must be observed that provocation, where it is a defense, does not negate Mens rea. It is allowed as a defense because, even though the accused has committed the actus reus of an offense with the requisite means rea, the law considers that at the moment of the commission of the physical act resulting in the actus reus, the accused by reason of passion arising from the act of provocation was not master of his mind.
1.1.0: Background of the study
It is an establish fact under the law that any act of killing which is unlawful is a criminal act. Such acts under the specific offence are referred to as „‟unlawful homicide which includes murder, manslaughter, suicide, infanticide.
Also any intention to kill or cause grievous harm by a person to another and which eventually results into death is an unlawful killing which is usually termed
„ murder‟. However, there are certain killings which do not amount to murder section 317 of the criminal code provide that an unlawful killing which does not amount to murder is manslaughter.
Manslaughter may be voluntary or involuntary; involuntary manslaughter covers cases in which there is no intention to kill or cause grievous harm. Voluntary manslaughter on the other hand occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation. Thus the provocation of section 318 of the criminal code is to the effect that a person is guilty of manslaughter only, if he unlawfully kills another in circumstances which would otherwise have constituted murder so far it is done in the heat of passion caused by sudden provocation and before there is time for his passion to cool. However before the defense of provocation can avail a person the test to be applied is to see what effect the act or series of acts of the deceased would have on a reasonable man, so that an unusually excitable or pugnacious person will be able to rely on it as a defense to a charge unless the provocation was such as to have led an ordinary person to act in the way the accused did.
1.2.0: Objective of the Study
The aim and objective of this work is to examine the meaning of the term
„provocation‟ its plea as a defense to criminal charge in Nigeria and the conditions under which it can avail a person by reducing his capability from murder to manslaughter or culpable homicide punishable with death to that not punishable with death. In view of this, this work shall attempt to achieve the following goals:
Ø To examine the defense as well as its elements
Ø To examine the defense under the Nigeria Criminal justice System; what constitute the defense and its grounds for reducing murder to manslaughter.
Ø To examine the burden of proof, the effect, adequacy and limitation of the defense and to suggest or make recommendation on the defense if there is any.
1.3.0: Focus of Study
The state at which a person response to stress situation varies from one individual to another. Men are highly vulnerable to stress while some are slightly resistant these are proved by clinical observation and experiment. There seems to be different factors combined to produce the difference of response in that situation
(provocation) from another person all are to be taken into consideration. The essay is thus focused on the defense of provocation with reference to the essential element of the plea, the effect of the successful plea of the defense.
1.4.0: Scope of the study
This essay is limited in scope to the provision of the two statutes governing the Nigeria Criminal Justice System. How the defense of Provocation mitigate murder to manslaughter, and upon who lays the burden of proving provocation.
The approach of research taken into consideration is based on explanatory method, thus textbook, journals, articles by law writer, publications, judicial pronouncement and opinion will be looked into. Decided cases will also be employed in this essay to be able to understand more on the principles of law relating to the defense of provocation in criminal liability. The Criminal Code and the Penal Code will also be of immense use to this work.
1.6.0: Literature Review
The bulk of materials used in writing this work consist of textbook, write ups etc. by various scholars both foreign and Nigerian. The writer also makes captious use of case laws (both Nigerians and non-Nigerians) the reason for this is to appraise the disposition of the court towards the defense. The provisions of the two codes (Penal Code and Criminal Code) are also highlighted and espoused. Those provisions represent the main laws govern criminal liability in Nigeria. Provocation was defined by Delvin J in R V Duffy as an act done by the dead man to the accused which could cause in any reasonable man temporary loss of self-control.
Smith and Hogan in their book examined all aspects of criminal law and criminal responsibility, the generally principles of criminal liability and in particular specific defense. All these were done with illustration from decided cases.
Okonkwo and Naish is a Nigeria criminal law textbook, it explicated the defense of self-defense, the effect of a successful plea of provocation.
L.B Curzon8 in his book examined all aspects of criminal law and criminal responsibility and even defenses.
1.7.0: Definition of term
It is define by section 1 Criminal Code act as liability to punishment as for an offence. It is the liability incurred as a result of an act or omission committed by an offender or an accused person.
An act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding.
This is the physical components of a crime and that generally must be coupled with means rea to establish criminal liability; a forbidden act.
The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness.
8 Criminal Law‟ (8th ,ed Pitman Publishing, London 1997) P.23 )
Burden of proof
This is a party‟s duty to prove a disputed assertion or charge.
The act of inciting another person to do something, especially to commit crime.
Act is something done or performed, especially voluntary; a deed.
Failure to do something which law directs to be done and was not done i.e.
negligent, carelessness mistake etc.
The willingness to bring about something planned or foreseen i.e. the state of being set to do something.
The defense of provocation is a defense which avail a person convicted of murder. This defense mitigates murder to manslaughter, provided it was done in the heat of passion. It is a defense recognize in law and the constitution for the prevention of life and property. It is reasonable for a person who is provoked to act irrational in the heat of passion.
Keywords: PROVOCATION AS A DEFENSE TO CRIMINAL LIABILITY