MORE often than not, the defence of provocation comes handy to citizens as an explanation or attempt to justify their actions especially ones that constitute a criminal offence.
People therefore tend to rely on provocation as a defence but to what extent does this avail an accused person under our criminal law?
Provocation refers to some act or series of acts by the deceased to the accused which has the capacity of making a reasonable person and actually leads the accused to sudden and temporary loss of self control rendering the accused to subject to passion as to make him for the moment not master of his mind
Justice Karibi-Whyte JSC in Alochukwu v The State (1992) NWLR(Pt.217) 255 at 270, has this to say about provocation “ The term provocation as defined in section 283 of the criminal code is in relation to an offence of which an assault is an element. It includes any wrongful act or insult of such a nature as to be likely when done to an ordinary person in the presence of an ordinary person to another person who is under his immediate or to whom he stands in a conjugal, parental, filial or fraternal 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”
The above statement of the erudite Justice of our apex court clearly adumbrates the provision of section 283 of the criminal code which states “ The term provocation with reference to an offence of which an assault is an element, except as hereinafter stated, includes any wrongful act or insult of such a nature as to be likely to when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate or to whom he stands in a conjugal, parental, filial or fraternal 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 .
“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 the other, or to whom the latter stands in any such relation as aforesaid. The former is said to give the latter provocation for an assault” …
From the above, it is crystal clear that provocation is a wrongful act which should not be tolerated by the law. It is indeed against this backdrop and the need to discourage provocation that the law makes provocation when properly made out to serve as a defence to criminal offence.
This is the essence of section 284 of the criminal code which provides thus “ 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 sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation”…
For an accused to successfully sustain the defence of provocation therefore, he has to convince the court that there is an act of provocation which must be grave and sudden followed by the accused’s loss of self control both actual and reasonable and a retaliation which is proportionate to the provocation.
This position of the law has been given eloquent expression in a plethora of cases including James Biruwa v State (1985) 3NWLR (Pt. 11) 167 ratios 2& 9. Edoko v State (2016) 9 WRN 73 at p. 89 lines 35-45. Alochukwu v The State (supra) .
A clear statement of the of the fact or act of provocation and how the provocative act of the deceased deprived him of self control and the fact that the retaliation was not disproportionate to the provocation offered by the deceased must therefore be proved to the satisfaction of the court before an accused can take benefit of the defence of provocation. This was robustly enunciated in Stephen v The State (1988)12 SC 450 at 498 .
In the case of Shalla v The State (2007) 18NWLR (Pt.1066) 240 SC, where the appellant and others slaughtered one Abubakar Alhaji Umaru with a knife whom they accused of making insulting remarks about prophet Mohammed, the court held “ It is not all provocations that will reduce the offence of Murder to manslaughter. Provocation , to have the result must be such as temporarily deprived the person provoked of the power of self control as a result of which he committed the unlawful act which caused the death.The test to be applied is that of the effect the provocation would have on a reasonable man. In applying the test, it is of particular importance to take into account the instrument with which the homicide was effected. For to retort in the heat of passion induced by provocation by a simple blow is a very different thing from making a deadly instrument like a concealed dagger…”
Provocation founded on juju is also inadmissible. In Njoku V The State (2013)MRSCJ VOL.18, 107 at 121, paras D-F, the supreme court held that”from the stand point of law the incident of dropping a charm or juju at the residence of the Appellant which is allegedly linked with the death of the two year old son of the Appellant does not qualify as an incident of provocation.It does not matter that the Appellant may honestly believe that there was a connection between the two events which event is obviously founded on witchcraft simpliciter as learned counsel for the Appellant has offered no other explanation .IT is however settled law that a plea of provocation founded upon witchcraft cannot stand”
Provocation as a defence will not avail an accused if the interval between the provocative act and retaliation was sufficient for passion of a reasonable person calm down.
In Njoku v The State
(supra) the appellant went into his house and brought a matchet and struck the deceased several times on the allegation that the deaceased not only dropped charm in his (appellant’s) house and that the following day his son died and as if that was not enough, the deaceasd mocked the Appellant during the burial of the latter’s son.
The defence of provocation was rejected not only because dropping of juju cannot found such defence but also because the interval between the alleged mockery and the search for matchet and stabbing the deceased leading subsequently to death of the deceased was enough for passion to cool.
Defence of provocation if well made out does not totally exculpate the accused but has the effect of mitigating murder offence to manslaughter. See the cases of Ajunwa v The State(1988) SC 110 Edoko v State (Supra). It is different from self defence in the sense self defence totally exculpates the accused and leads to aquital while provocation serves only the purpose of reducing murder to manslaughter.
Provocation remains a potential defence for mitigating the offence of murder to manslaughter but the three elements of provocative act, loss of self-control and retaliation which must be proportionate to the provocation, must be proved.
