PROVOCATION AS A DEFENSE TO CRIMINAL LIABILITY
Abstract
One of the defences open to an accused which may exculpate or mitigate him from criminal liability is provocation. The law recognizes that human beings are prone to losing their control under extreme rage and should they react violently, justice demands that account be taken of this natural tendency of theirs in inflicting punishment. The defence of provocation is available to an accused as a mitigating defence rather than an absolute one because much as the law recognizes human weakness, it does not condone human ferocity.
This project work shall attempt a detailed examination of provocation as a defence to criminal liability largely concentrating on the Nigerian perspective.
This work shall comparatively examine the defence of provocation with other advanced jurisdictions such as Canada, American etc in order to show its applicability in Nigeria. The aim and objective of this work is to analyse the legal framework of provocation as provided for under the penal and criminal codes in Nigeria and other relevant statute, its nature, element, effect and adequacy, conditions under which the defence can avail a person and possible recommendations on the defence.
The methodology of the research is Doctrinal, Analytical and Argumentative. Information shall be sought from law libraries and the internet. Recourse shall be made to books, journals, law reports and statutes.
CHAPTER ONE
INTRODUCTION
- Background of Study
In Nigeria any act of killing which is unlawful is a criminal act. Such acts under certain offences are referred to as unlawful homicide, which includes suicide, infanticide, murder, manslaughter. Also, any intention to kill or cause grievous harm by a person to another and which eventually result in death, is an unlawful killing which is usually termed
“murder”.
The onus of proving the guilt of an accused is on the person who allege for the commission of the offence .[1] An accused person on the other hand is entitled to defend himself of the charge leveled against him in which provocation is one of such defences. The defence of provocation is raised by an accused mostly in homicide cases in relation to murder and manslaughter. However, certain killings do not always amount to murder. Section 317 of the Criminal Code Act[2] grievous harm, while voluntary manslaughter occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter due to provocation.
The defence of provocation may also arise where a person who does not intend to kill, inflict a bodily harm due to sudden passion involving loss of self control by reason of provocation. The intricate nature of the defence has brought about so much controversy. It is controversial because the court is often eager to find what amount to provocation from the accused person.
Accordingly, provocation under Section 318 of the Criminal Code Act[3] 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. The Supreme Court in the case of Obaji v State[4] held that section 318 of the Criminal Code Act[5] should be read alongside with section 283 of the Criminal Code Act[6]. Thus, before the defence 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 Statement of Problem
Basically, the controversial nature of the defence appears to enable defendants to receive more lenient treatment because they allowed themselves to be provoked.
[1] Section 36(5) CFRN 1999, this provision also state that provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
[2] CAP C.38 Laws of the Federation of Nigeria, 2004.
[3] CAP C. 38 Laws of the Federation of Nigeria, 2004
[4] (1965) I All NLR 269
[5] Ibid
[6] CAP C. 38 Laws of the Federation of Nigeria, 2004
