By Bamidele Kolawole

|

Provocation as a defence can avail a defendant in a Criminal Charge simply by proving that the victim of the offensive action did something that moved the defendant to anger, thereby causing him to inflict the blow that caused the ASSAULT or MURDER as the case may be.

Black’s Law Dictionary defined provocation as something (such as words or actions) that arouses anger or animosity in another, causing that person to respond in the heat of passion.

Section 284 of the Criminal Code Act in Nigeria making provision for the Defence of provocation provides 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 the 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.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self‐control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self‐control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

It is noteworthy to state that provocation is not a total absolution of criminal responsibility in cases like murde. Provocation, at the base level is a phenomenon in legal procedural mechanism that it’s occurrence can lead to the mitigation of a more serious offence to a lesser one. Simply put, provocation can mitigate murder , largely punishable by death, to manslaughter which guarantees an escape from the hangman’s noose.

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.

However he went on to draw a distinction between vituperative words and words used as a means of conveying information, and referred to earlier judicial views that. a husband suddenly hearing from his wife that she had committed adultery might be thereupon so angered as to kill her in circumstances which might amount to only manslaughter.

In the case of Oladipupo v. The State (1993) 6 SCNJ 233 at 239 for instance, it was held that for an accused to avail himself of the plea of provocation, he must have done the act for which he is charged in the  following circumstances: (i) in the heat of passion; (ii) the act must have been caused by sudden provocation; (iii) the act must have been committed before there was time for passion to cool; and (iv) the mode of resentment  must be proportionate to the provocation offered.

According to C. O. Okonkwo and M.E. Naish, the defence of provocation stands on the fulcrum of human frailty, which in itself is a psychological state of mind, an inherent moral weakness  and character flaw, intrinsic to humanity. Thus in such instance, it is inherent on the court to appraise any such quagmire holistically and with unrefined precision, a task which the Judge should get more credit for.

PROVOCATION: This is not an offence, rather it is a defense to alleged Crime and Criminal charges, such as ASSAULT, MURDER and related offences.

 Provocation as a defence can avail a defendant in a Criminal Charge simply by proving that the victim of the offensive action did something that moved the defendant to anger, thereby causing him to inflict the Blow that caused the ASSAULT or MURDER as the case may be.

The Elements of PROVOCATION

1.            that the victim moved the defendant to anger first.

2.            that the defendant ordinarily had no reason to show aggression towards the victim.

3.            that the action or “language” of the victim cannot be expected to be tolerated by any reasonable person.

4.            that the defendant did not premeditated the aggressive action, without the provocative action of the victim. It must be born in mind that PROVOCATION is not an offence rather it is a DEFENSE.

The Supreme Court case of Ndubuisi v. State (2019) ALL FWLR (pt 995) at 875-876 defines Provocation as “some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually cause in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”

See also Akalezi v. State (1993) 2NWLR (Pt. 273) 1.

The elements which a defendant, who wants to avail himself of this special defence of provocation, must prove were also well stated to be that;

There was the deceased person’s act of provocation which caused his loss of self-control;

He killed the deceased in the heat of passion and

At the time of killing, the heat of passion had not waned.

These Trinitarian elements, which must be read conjunctively, require the defendant to prove that due to the deceased person’s sudden act of provocation, he (defendant) killed him [the deceased person]  on the spur of the moment before his [defendant’s] passion could abate or vapourise.

In a word, the provocative act must be such that would deprive him of self-control suddenly and temporarily. The situation must have been such that, at the twinkle of that interval, he was no longer the master of his mind.

In effect, his act of killing the deceased person must have been done in the heat of passion and before his temper could cool off. In any event, his act must be proportionate to the provocation. An act of savage temper rules out the plea of provocation.

 1. Ndubuisi v. State (2019) ALL FWLR (Pt. 995) 877.

2. Supra.

Generally, the Onus of proof of the commission of a crime lies on he who alleges. S. 135 of the Evidence Act 2011.

When a person is accused of murder, it is very serious in the sense that when it is proven against him, he has to make a defence to his innocence or to the un-intentionality of the commission of the offence. To proof that a murder or manslaughter is committed, one of the defence is provocation.

When is provocation required?

Provocation is often required in the case of murder. This is to create a distinction in the degree of the offence committed.

To determine, whether it is murder: an intentional and unlawful killing of a person(s) or a manslaughter: which is negligent or incidental Unlawful killing.

Hence, to proof manslaughter, one of the defences is Provocation.

Therefore, the what is provocation?

Section 318 of the Criminal Code provides to the effect that when a person unlawfully kills another or causes the death of another in the heat of passion caused by grave and sudden provocation and before there is time for his passion to cool only, he is guilty of Manslaughter only.

What then are the Elements of Provocation?

Based on Section 318 of the Criminal Code, the Elements of Provocation are:

a. Heat of Passion or death by passionate reaction.

b. Passion by grave or sudden provocation.

c. There is no cool of time or breakage of event. The action must be done within the calculative mathematical time within which the provocation was done.

d. The Provocation must correspond with the effect of the action. Here, the reasonable Man’s test must be adopted. It means putting oneself in the shoes of the accused to know, what a reasonable man in his stead would do.

This test, must be subjective.

PROVOCATION: Is used most times to escape the penalty that involves the crime of murder but then, there is no claim of provocation, no matter how beautifully it may be painted that can justify killing of a human being, the highest it has ever done is to reduce the offence of murder to manslaughter.

The term “provocation”, which was used in Section 283 of the Criminal Code defines provocation with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act or insult of such nature as to be likely, when done to an ordinary person, or in the presence of the ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self‐control, and to induce him to assault the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of excitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that person for an assault.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

ELEMENTS OF PROVOCATION:

The act of provocation was carried out in the heat of passion (when there is still anger in display)

The loss of self – control, act committed before there was time for the temper to cool down.

The retaliation is proportionate to the provocation committed.

The act was done as a result of sudden provocation.

Sometimes, when people get angry with what they are displeased at, they tend to react to it and in certain situation they might blow up out of proportion with what has happened.

This may happen because of an action or speech that makes them angry and especially deliberately.

Their momentary weakness is revealed and emotions comes to light, they are provoked and they react consequently.

In the eyes of the law, provocation is viewed and determined differently from its dictionary meaning. Thus, before we explore the elements of provocation, it is apposite for us to know what it means.

The law views provocation 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.

Section 283 of the Criminal Code defines the term “provocation”, used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant , to deprive him of power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

Section 318 of the Criminal Code is meant for the cases of murder. It provides” When a person who unlawfully kills another in circumstances which, but for the provisions 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 his passion to cool, he is guilty of manslaughter only.”

In R V Green, the accused person’s wife having left him went to stay with her mother where she began to accept the advances of another man.

The accused tried hard to win back his wife but failed. At about 9pm he visited his mother-in-law and found his wife and her new suitor having sexual intercourse.

He returned to his house brooding over the incidence. He returned to his mother-in-law’s house at about 1am.

With a matchet to kill his rival if he was still there. Hearing the man and his wife’s voice in a dark room, he struck twice at the bed and killed his wife.

He also killed the mother-in-law when she rushed into the bedroom. Plea of provocation was rejected because between the provocation and the killing, there was enough time for his anger to cool.

The plea of provocation will not avail him since he did not kill them when he first saw them. The crime was premeditated and his action does not justify suddenness.

Similarly, In Musa v state, it was held that the person seeking to invoke the defence of provocation must satisfy the court of the following:

That he killed the deceased in the heat of the passion caused by sudden provocation

That at the time of killing, the heat of passion had not cooled.

In Nigeria, the reasonable man test is used to determine if the wrongful act against defendant is adequate enough to have caused the defendant to lose his self-control in other words, the court would determine what a reasonable and responsible man would have done in such situation.

This is the objective test adopted in Nigeria as against the subjective test in some other countries.

The proportionality rule is also used to determine the defence for provocation.

The term provocation, used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to ordinary person or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, filia or fraternal relation of his and servant, to deprive him of the power of self control and to induce him to assault the person.

By whom the act or insult is done or offered.

* The four elements which the court will consider before a plea of provocation can be successful as was decided in the case of OLADIPUPO VS. THE STATE (1992) 6 SCN, 233 AT 239 1

ARE

I. The accused person must have acted in the heat of passion

2. The act must have been caused by sudden provocation

3. The act must been committed before there was time for passion to cool

4. The mode of resentment must be proportionate to the provocation offered.

Provocation is a defence to some criminal allegations not only in Nigeria but in other Common Law jurisdictions.

Provocation could be a defence for criminal offences such as murder and assault.

Take notice that in the case of murder, provocation can only mitigate the sentence from death to life imprisonment since a successful plea of the defence of provocation will invariably change the crime of murder to manslaughter.

For an accused person or defendant in a criminal charge to successfully raise a defence,  he must be able to prove the followings: (a) that he has done the act for which he is charged with in the heat of passion; (b) The act must have been caused by sudden provocation; (c) The act must have been committed before there was time for passion to cool; (d) The mode of resentment must be proportionate to the provocation offered.

The implication of the above is that if a person who claimed to have been provoked to do a criminal act left the scene of the provocation, went to his house and came back with a machete to slaughter the person who allegedly provoked him, the defence of provocation will not avail him.

This is because the time within which he went to his house and came back with a machete, he is no longer in the “heat of passion”in the eye of the law as the passion ought to have cooled down at that particular time .

In law, provocation is a defence available to a defendant who is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable individual to lose self-control.

The term provocation is statutorily defined by section 283 of the Criminal Code Law, Chapter 37, Vol. 1, Laws of Ondo State of Nigeria, 2006 as:

… any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

A person is not criminally responsible for an assault committed upon a person who provoked to commit the assault, if he is in fact deprived by the provocation of the 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.

(See section 284 of the Criminal Code). Provocation is more than a defence, it is one of the very few restrictive statutory licence to take law into one’s hands. The law (section 285 of the Criminal Code) allows a person who is being provoked to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be a provocation to him for an assault with a caveat that the force used in preventing the provocation is not intended and is not such as is likely, to cause death or grievous harm.

This is a very trickish provision of law that must be carefully applied by the citizens. In fact, it is advised that the advantage and windows of provisions of section 285 should not be taken, rather, a person who is being repetitively provoked should immediately report the provocative activities to the appropriate law enforcement agencies.

Under the Ondo State Law, it is important to note that a lawful act cannot constitute provocation to any person. Hence, a person who assaulted an Amotekun officer because the officer stopped to demand for his or her vehicle documents cannot claim he was provoked to assault the Amotekun officer. Again, the defence of provocation is limited to offences that have to do with assault or offences subsequent to assault, i.e., death.

Therefore, when emphatically evidence is produced by the defendant to prove provocation as allowed and in the state accepted by the law, the crime he is charged with is said to have been committed in the heat of passion, under an irresistible urge incited by the provoking events, and without being entirely determined by reason.

In conclusion, provocation is one of the statutory defence by excuse or exculpation alleging a sudden or temporary loss of control. When the provocation is found to have lasted for an extended period of time, the permanent loss of control is regarded as insanity.

 In either case, provocation, as a response to another’s provocative conduct, is a sufficient defence to justify an outright acquittal, a mitigated sentence or a conviction for a lesser charge, depending on the facts of the case, the situations and circumstances of the case.

It is imperative to briefly define what provocation means before discussing its elements.

Black’s Law Dictionary defines provocation as something (such as words or actions) that arouses anger or animosity in another, causing that person to respond in the heat of passion.

“Provocation” is that which causes, at the time of the act, reason be disturbed or obscured by passion to an extent which might render ordinary persons, of average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment. Provocation is used as a criminal defence and before such defence can be sustained, there are elements or conditions which must well be proved satisfactorily.

Section 283 of the Criminal Code Act defines provocation as follows: The term provocation, used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filia or fraternal relation, or in the relation of master and servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

For a defence of provocation to avail a suspect, there are two tests that must be conducted.

The first one is Subjective test which focuses on whether the defendant was actually provoked to lose his/her self control and whether he committed the offence as a result of the loss.

The second test is objective test and it asks whether the provocation is enough to make a reasonable person do the same thing the defendant did in such an instance. This objective test can be termed as a reasonable man test and goes further to look at the provocation metes out before the defendant acted. This test is often used than the subjective test but both are highly essential in considering if the defendant had really being provoked before he acted. 

The Reasonable Man Test serves to determine whether a wrongful act or insult is sufficient to have caused the defendant to lose his self-control, or whether the act or insult would have made a reasonable man behave the way the defendant did. Though no specific definition for what is termed ‘reasonable man’ as the definition obtainable will be different based on perception, religious beliefs, region, ethnic propensity, environmental factor and education.

For an accused to avail himself of the plea of provocation, he must have done the act for which he is charged in the following circumstances: 

(i) in the heat of passion; (ii) the act must have been caused by sudden provocation; 

(iii) the act must have been committed before there was time for passion to cool; and 

(iv) the mode of resentment must be proportionate to the provocation offered.

All these aforementioned must co-exist before a defence of provocation can avail a defendant.