ELEMENTS OF THE DEFENCE PROVOCATION
There are some essential elements that must exist for a defence of provocation to succeed and all of these elements must be proved. By virtue of Sections 288, 284 and 318 of the Criminal Code and Section 38 and 222(1) of the Penal Code, several elements of the defence of provocation are established. In the case of RAFIU V PEOPLE OF LAGOS STATE,[2] the Supreme Court stated that for provocation to constitute a defence in a murder case, it must consist of three elements which must coexist, namely;
i. The act of provocation must be done in the heat of passion
ii. The loss of self-control, both actual and reasonable and the act was done before there was time to cool down
iii. The retaliation is appropriate to the provocation
i. Heat of Passion
The element requires that the act which caused death was done in the heat of passion. The passion must have been caused by sudden provocation and in deciding whether the provocation was sudden, previous wrongful acts or insults by the deceased are not sufficient because it fails to meet the requirement of suddenness. It is also settled that an act of revenge not done in the heat of passion cannot successfully form the basis of the defence of provocation.[3]
ii. Loss of Self–Control
The essence of the element of loss of self-control in the defence of provocation is that it gives rise to a brain-storm that momentarily paralyses the power of self-control in the person affected and so negates the necessary mens rea of the alleged offence. It is therefore crucial in the defence that the act held out as a natural and justifiable reaction of the person given the provocation, must not be done in self revenge, but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the instant circumstances of the case.[4]
iii. Appropriate Retaliation:
In the decided case of EZE V STATE[5], the Court of Appeal held that 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 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. The Court further went ahead to state that whether any force used is or is not disproportionate to the provocation, are questions of fact in each case.