CONTRIBUTED BY VICTOR ATANG
INTRODUCTION
The defence of provocation is generally seen as a concession to human frailty introduced by Common Law in the early 16th Century to mitigate the penalty of death of a convict who has been found guilty of a capital offence. The defence of provocation is raised by an accused mostly in homicide cases in relation to murder. The defence of provocation may arise where a person who does not intend to kill, inflicts bodily harm due to sudden passion resulting from loss of self-control by reason of provocation. The main aim of this paper is to examine the defence of provocation as well as analyse the legal framework, its nature, the conditions under which the defence can avail a person and the effect of a successful plea.
MEANING AND NATURE OF PROVOCATION
Provocation can be defined as an act of arousing anger or animosity in another, either by words or actions, causing such a person to respond in the heat of passion. Section 318 of the Criminal Code provides that ‘‘When a person who unlawfully kills another in circumstances which, but for the provision of this section would constitute murder, does the act which causes death in the heat of passion caused by grave and sudden provocation, and before there is time for him to cool, he is guilty of manslaughter only’’. In the case of FANAKINWA V STATE[1], the Court of Appeal stated thus:
“Our understanding of the binding authorities on this point is that provocation is definable as an act or series of acts which could cause, in a reasonable person [and, actually, does cause in the defendant], a sudden and temporary loss of self-control rendering him vulnerable or susceptible to passion so much so that, for the moment, he is no longer the master of his mind.”
The nature of provocation simply means the form provocation takes, which is usually through words or deeds. In the English case of HOLMES V D.F.P it was held that words alone cannot amount to provocation except of most extreme and exceptional character.
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;
- The act of provocation must be done in the heat of passion
- The loss of self-control, both actual and reasonable and the act was done before there was time to cool down
- The retaliation is appropriate to the provocation
- 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]
- 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]
- 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.
SCOPE OF THE DEFENCE OF PROVOCATION
Burden of Proof
In pronouncing on whom lies the burden of proofing the defence of provocation, the Court of Appeal in the decided case of ABDU V STATE[6] held that the defence of provocation, like all other defences cannot hang in the air without supporting evidence nor can it be built on scanty foundations. In order to establish it, it is the duty of an accused person to adduce credible or positive evidence to support the alleged provocation. Where the accused person fails to adduce evidence in support of his defence, the Court has to rely on the evidence adduced by the prosecution. From the foregoing, it is clear that a defendant who pleads provocation to a charge bears an evidential burden to adduce evidence of the existence of the provocation sufficient to satisfy the trial Court that the defence is fit to be placed before the Court.
Effect of a Successful Plea of Provocation
In the recent case of UMAR V KANO STATE[7] the Court of Appeal held that the defence of provocation does not exculpate an offender from criminal liability, rather it minimizes or reduces the sentence. To put it in other words, where an accused charged with homicide successfully raises a defence of provocation, that defence does not exculpate him of punishment but it merely reduces culpability to manslaughter which carries a term of imprisonment unlike homicide which is punishable by death. This position of law was also posited by the Supreme Court in the recent case of STATE V DA’U[8] when it held that 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.
Distinction between the Effect of a Successful Plea of the Defence of Provocation and the plea of Self-Defence
While a plea of self-defence if successfully raised will completely absolve the offender from criminal responsibility, a plea of provocation on the other hand, if successful, reduces the offence of murder to manslaughter. Under the Nigerian Criminal justice system, if a man is attacked in circumstances where he seriously believes his life was in danger of serious bodily harm, he may use such force as he believes is necessary to prevent and resist the attack. And if in using such force he kills his assailant, he is not guilty of any crime. In deciding whether it was reasonably necessary to have used such force as was used, regard must be had to all the circumstances of the case including the possibility of retreating without danger or yielding anything that he is entitled to protect.[9]
CONCLUSION
The law provides for the defence of provocation in recognition of the inevitability of human frailty or infirmity as well as the natural tendency to overreact. It has however been established in a plethora of judicial authorities that provocation, when successfully pleaded operates as a partial or mitigating defence. It is imperative to note that it is not in all circumstances that the defence will reduce the crime of culpable homicide punishable with death to culpable homicide not punishable by death. The defence of provocation, to have that result must be such as to temporarily deprive the person provoked of the power of self-control as a result of which he commits the unlawful act which causes death. The test to be applied is that of the effect of provocation on a reasonable man so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did.
