An Appraisal Of Provocation As A Defense To Criminal Liability Under The Nigerian Law

Description

ABSTRACT

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. This research work seeks to examine the meaning of the term Provocation as provided under the Criminal and Penal Codes and other relevant statutes, case law, and books by various authors, a comparison of the application of the plea of provocation under the Criminal and Penal Codes and to look into its nature, elements and the conditions under which the defense can and cannot avail a person from criminal liability.

TABLE OF CONTENT

TITLE PAGE

CERTIFICATION

DEDICATION

ACKNOWLEDGEMENTS

TABLE OF CASES

TABLE OF STATUTES

LIST OF ABBREVIATIONS

ABSTRACT

TABLE OF CONTENTS

 

CHAPTER ONE

1.0.      INTRODUCTION

1.1.      BACKGROUND OF STUDY

1.2.      OBJECTIVE OF STUDY

1.3.      SCOPE OF STUDY

1.4       RESEARCH QUESTION

1.5.      LIMITATIONS OF STUDY

1.6.      RESEARCH METHODOLOGY

1.7       DEFINITION OF TERMS

CHAPTER TWO

2.0       LITERATURE REVIEW

2.1       DEFINITION OF CRIME

2.2       GENERAL PRINCIPLES OF CRIMINAL LIABILITY

2.3       ACTUS REUS

2.4       MENS REA

2.5       NATURE OF PROVOCATION

CHAPTER THREE

3.0.      INTRODUCTION

3.1.      DEFINITION OF PROVOCATION

3.2.      ELEMENTS OF PROVOCATION

3.3.      DEFENSE TO PROVOCATION

3.4       DEFENSE TO PROVOCATION UNDER THE CRIMINAL CODE

3.5       DEFENSE TO PROVOCATION UNDER THE PENAL CODE

 

CHAPTER FOUR

4.1       THE BURDEN OF PROOF TO PROVOCATION

4.2       BURDEN OF PROOF IN CRIMINAL LIABILITY

4.3       EXCEPTIONS OR EXEMPTIONS TO THE BURDEN OF PROOF IN CRIMINAL LIABILITY

4.4       THE BURDEN OF PROVING THE DEFENCE OF PROVOCATION

4.5       EFFECT OF A SUCCESSFUL PLEA OF PROVOCATION

 

CHAPTER FIVE

5.0       CONCLUSION, SUMMARY OF FINDINGS AND RECOMMENDATION

5.1       CONCLUSION

5.2       SUMMARY OF FINDINGS

5.3       RECOMMENDATION

BIBLIOGRAPHY.

 

TABLE OF CASES

A.

Abeke v. State (2007) 9 NWLR (Pt.1040) P.411 at 429.

Adamu Kumo v. State [1976] 1 All N.L.R. 289.

Adekoya v. State (2010) LPELR-3604 (CA).

Afonja v. R. (1955) 15 W.A.C.A 26 at P.28.

Aigureghi v. The State (2004) 1 (Pt. i) 65 at 86.

Aiworo v. State (1987) 2 N.W.L.R. 526.

Akanni Ogundimu v. State [1979] 13 C.A. 12.

Akile Gachi & Ors v. The State 1956 N.M.L.R. 333.

Ala Chukwu v. The State (1990) 12 S.C.N.J P.71.

Apishe v. State (1971) 1 All N.L.R 50.

Attorney- General Western Nigeria v. Philip Uptire 1964 N.M.L

B.

Babuga v. The State (1996) 7 N.W.L.R. (Pt.460) 279).

Basil Akalezi v. [1993] 2 N.W.L.R. 1 at 13 S.C.

Beatty v. Gillbanks (1882) 9 Q.B.D. 308.

Bedder v. D.P.P. [1954] 1 W.L.R. 1119; [1954] 2 All E.R. 801.

Brend v. Wood (1946) 175 C.T. 306.

C.

Cf. Inspector-General of Police v. Hilary Ewekay [1957] L.L.R. II.

Chan kau v. R. [1955] A.C.206.

Christopher Otti v. Inspector-General of Police 1956 N.R.N.L.R. 1

Chukwu v. The State [1992] 1 N.W.L.R 255.

Clement Obiri v. The State [1997] 8 N.W.L.R. 352.

D.

D.P.P. v. Camplin [1978] 2 W.L.R. 679; [1978] 2 All E.R. 168.

Daniels v. The State [1991] 8 N.W.L.R. 715.

Danshallah v. State (2007) 12 M.J.S.C.1.

E.

Edemide v. The State (1996) 3 N.W.L.R. (Pt.438) 530 at 539.

Ejalofu v. Queen (1962) 1 All N.L.R. P.22.

Ekpeyong v. State (1993) 2 N.W.L.R. Pt. 229 at 513.

Ezekwe v. Otomewo (1957) N.W.L.R. P.30.

F.

Ferdinand & Abadom v. The State [1997] 1 N.W.L.R. 1.S.C.

Franklin Braide v. The State [1957] 5 N.W.L.R. 141.

G.

Garba v. The State (2000) F.W.L.R. (Pt.24) 1405 at 1405.

Gibbons and Proctor (1918) 13 CR APP.R.P.134.

Greyson v. R. 1961 R&N.337.

H.

Hyam v. D.P.P. [1974] 2 All E.R. 41.

I.

Idiong v. R (1950) 13 W.A.C.A 30.

Ilori v. State (1980) 8-11 S.C.81.

J.

Justin Ilumo & Anor v. Commissioner of Police 1971 N.N.L.R.152.

K.

Kwaku Mensah v. R. [1946] A.C.83 at 91-92.

L.

Lado v. State (1999) N.W.L.R. (Pt.619) 369 at 379-380.

M.

Mancini v. D.P.P. [1942] A.C.1.

Matthew Onakoya v. R (1959) 4 F.S.C.150.

Mehmet Ali v. R. (1957) W.A.L.R. 28. Cf.

Miller v. Minister of Pensions (1942) 2 All E.R.

Mohan (1976) Q.B. at 11.

N.

Nga’aba v. Queen (1969) N.N.L.N.97.

Nigerian Air Force (2003) 1 S.C. 9Pt.II) 142 at 146.

O.

Obaji v. State [1965] All N.L.R.269.

Obiakor v. The State (2002) 6 S.C.N.J. P.193 at 202.

Obinga & Ors v. Police 1965 N.M.L.R.172.

Okeke v. State (2003) 2 S.C.63 at 73.

Oludamilola v. State (2010) 3 M.J.S.C. (Pt. II) 1 Q.B. at 120.

Onubogu v. State (1974) 9.S.C.

Onya v. State (2006) 2 W.N.L.R. (Pt.991) 271.

Onyekwe v. State (1988) 1 N.W.L.R.565.

P.

Patrick Njovens & Ors v. Police 1965 N.M.L.R.172.

Pearman (1984) 80 Cr.APP. R.259.

R.

706. v. Acott (1997) 1 All E.R.706.
707. v. Adekanmi (1994) 17 N.L.R.99
708. v. Adelodun [1959] W.N.L.R.114.
709. v. Akpakpan (1956) 1 F.S.C. 1.
710. v. Ani Nwokarafor & Ors. (1944) 10 W.A.C.A.221.
711. v. Basil Ranger Lawrence (1932) II N.L.R.6.

R.v. Blake (1942) 8 W.A.C.A. 118.

932. v. Duffy (1949) 1 All E.R.932.
933. v. Dythal (1979) 3 Q.B.722.
934. v. Ebok [1950] 19 N.L.R. 84.
935. v. Ekpo (1938) 4 W.A.C.A. 110.
936. v. Green (1955) 15 W.A.C.A.73.
937. v. Igiri (1948) 12 W.A.C.A. 377.
938. v. Igwe F.S.C. 83/1963.
939. v. Lawrence (1993) II N.L.R.; (1933) A.C.699 (P.C).
940. v. McCarthy (1959) 2 Q.B. 105 at P.112.
941. v. Miller (1983) 2 A.C. 161.
942. v. Nwanjoku (1973) 3 W.A.C.A. 208.
943. v. Obiase (1938) 4 W.A.C.A. 16.
944. v. Okoni (1938) 4 W.A.C.A. 19.
945. v. Oladipo Oshunbiyi (1961) All N.L.R.153.
946. v. Onouha (1938) 3 W.A.C.A. 88
947. v. Porritt (1961) 1 W.L.R. 1372.
948. v. Sam Mofor [1944] 10 W.A.C.A. 251.
949. v. Uko (1939) 5 W.A.C.A. 63.

S.

Shande v. State (2005) 22 N.W.L.R. (Pt. II) 756.

Simi Johnson v. Commissioner of Police (1960) W.N.L.R. 118.

State v. Mohammed (1969) 1 N.M.L.R. 12.296.

Stephen Emoga v. The State (1971) 7 S.C.N.J. 518.

Sunday Omeniru v. State (1965) N.M.L.R. 365.

W.

West Minister Council v. Croyal Grange Ltd. (1986) 2 All E.R. 353-359.

Wilkins v.TJ. S 96 Fed. 837. C.C.A 588.

Wollmington v. Director of Public Prosecution (1935) A.C. 463.

Y.

Yanor & Ors v. The State 1956 N.M.L.R. 337; [1965] 1 All N.L.R. 193.

 

 

TABLE OF STATUTES

Criminal Code Act Cap, C38 LFN,2004.

Children and Young Person’s Act 1933.

Constitution of the Federal Republic of Nigeria 1999.

Evidence Act Cap.62, LFN, 1958.

Evidence Act Cap.112, LFN 1990.

Evidence Act Cap. E14 LFN 2001.

Evidence Act, 2011.

Money Lenders Ordinance Cap 136 of the 1948 Laws of Nigeria; now the Money Lenders Act Cap.124.

Penal Code Cap P3 LFN 2004.

Road Traffic Act Cap.184.

 

LIST OF ABBREVIATIONS

A.C.- Appeal Cases.

All E.R- All England Report.

All N.L.R- All Nigerian Law Reports.

C.A.- Court of Appeal.

C.C.- Criminal Code.

C.J.- Chief Justice.

Cr.App.R.- Criminal Appeal Reports.

E.A- Evidence Act.

E.D.- Edition.

F.S.C.- Federal Supreme Court.

F.W.L.R- Federation Weekly Law Report.

L.F.N- Laws of the Federation of Nigeria.

L.L.R.- High Court of Lagos Law Reports.

L.P.E.L.R.- Law Pavilion Electronic Law Reports.

M.J.S.C- Monthly Judgement of Supreme Court.

N.M.L.R.- Nigerian Monthly Law Reports.

N.N.L.R.- Northern Region Law Reports.

N.N.L.N – Northern Nigeria Legal Notice.

N.R.N.L.R. – Northern Region of Nigeria Law Reports.

N.W.L.R- Nigerian Weekly Law Report.

P.C.- Penal Code.

Q.B- Queens Bench.

Q.B.D- Queens Bench Division.

SEC- Section.

S.C.N.J- Supreme Court Cases of Nigeria Judgment.

W.A.C.A- Western African Court of Appeal.

W.A.L.R.- Western Australian Law Reports.

W.L.R. – Weekly Law Reports.

W.N.L.R- Western Region Nigeria Law Reports.

 

 

CHAPTER ONE

1.0                                                         INTRODUCTION

1.1                                         BACKGROUND OF THE STUDY

It is an established fact under the law that any act of killing which is unlawful is a crime. 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 provides 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 provocation.

Thus the provocation of section 318[1] of the criminal code to the effect that a person is guilty of manslaughter only, if he unlawfully kills another in circumstances which would have constituted murder so far it is done in the heat of passion caused by the 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 to 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       AIM AND 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:

1. To examine the defense as well as its elements.

2.To examine the defense under the Nigerian Criminal Justice System; what constitutes the defense and its grounds for reducing murder to manslaughter.

3. 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. SCOPE OF THE STUDY

The state at which a person responds to stress situation varies from one individual to another. Men are highly vulnerable to stress while some are slightly resistant to stress and provocation and 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 and 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 defense. This essay is limited in scope to the provision of the two statutes governing the Nigeria Criminal Justice System. How the defense of provocation mitigates murder to manslaughter, and upon who carries the burden of proving provocation.

1.4       RESARCH QUESTION

At the end of this work, this research shall be able to answer the following questions:

1. Can provocation lead to murder of person?
2. Must the act be done on the person who causes the provocation?
3. Can a wrongful act or insult provoke a person?

1.5. LIMITATION OF THE STUDY

As we all know that no human effort to achieve a set of goals goes without difficulties, certain constraints were encountered in the course of carrying out this project and they are as follows:-

1. Difficulty in information collection: I found it too difficult in laying hands of useful information regarding this work and this course me to visit different libraries and internet for solution.
2. Financial Constraint: Insufficient fund tends to impede the efficiency of the researcher in sourcing for the relevant materials, literature or information and in the process of data collection (internet, questionnaire and interview).

• Time Constraint: The researcher will simultaneously engage in this study with other academic work. This consequently will cut down on the time devoted for the research work.

1.6                                                  DEFINITION OF TERMS

Criminal Liability: It is defined under section 1 of the Criminal Code Act as liability to punishment for an offence. It is the liability incurred as a result of an act or omission committed by an offender or an accused person. It refers to responsibility for a crime and the penalty society imposes for the crime.

Crime: This an act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding. A crime is an act committed or omitted, in violation of a public law, either forbidding it or commanding it; a breach or violation of some public right or duty due to a whole community, considered as a community in its social aggregate capacity, as distinguished from a civil injury. WILKINS V TJ. S[2]

Actus reus: This is the physical components of a crime and which must generally be coupled with mens rea to establish criminal liability. It refers to an act or omission that comprise the physical elements of a crime as required by statute.

Mens rea: Latin for a guilty mind usually referring to the guilty state of mind required for a crime in conjunction with a prohibited act, e.g. intentional, reckless or negligence homicide. It is 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.

Burden of proof

This is a party’s duty to prove a disputed assertion or charge. In criminal cases, the burden of proving the defendant’s guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt.

Provocation: The act of inciting another person to do something, especially to commit crime. Provocation simply, unaccompanied by a crime or misdemeanor, does not justify the person provoked to commit an assault and battery. In cases of homicide, it may reduce the offence from murder to manslaughter.

Act: Act is something dome or performed, especially voluntary. Failure to do something which law directs to be done and was not done i.e. negligent, carelessness, recklessness and mistake.

Intention: The willingness to bring about something planned or foreseen i.e. the state of being set to do something. It generally refers to the mental aspect behind an action.

1.7       RESEARCH METHODOLOGY

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 employed in this essay to be able to understand more on the principles of law relating to the defense of provocation to criminal liability. The Criminal and Penal Codes will also be of immense use to this work.