THE ELEMENTS OF PROVOCATION UNDER THE NIGERIAN CRIMINAL LAW

 

The following are the legally created elements of provocation:

                    i.     The provocation must be capable of having the doer of the unlawful act (murder) lose self-control.

                  ii.     The act which causes the death must be executed in the heat of passion caused by sudden provocation before there was time for temper to cool.

                iii.     The party who pleads provocation who causes the death of another must have caused the death of the person who offered the provocation.

                iv.     The manner of resentment must be reasonably proportional to the provocation offered

We will now attempt to discuss these elements exhaustively having highlighted them supra:

The provocation must be capable of having the doer of the unlawful act (murder) lose self-control: this ingredient of provocation must be satisfied before the defence of murder case can avail the defendant. In ascertaining whether this ingredient is sustainable, an objective test must be carried out by the court, the objective test is upheld to show whether a reasonable man in the place of the defendant would be provoked by the act of the deceased. In fact, in the celebrated cases of R v Nwanjoku (1937) 3 WACA 208 and R v Adekanmi (1944) 17 NLR 99, the courts were of the opinion that a defendant who was not provoked by the act of the deceased, although a reasonable man will cannot succeed in a plea of provocation. Thus, who a reasonable man is will be a question of fact. In the case of Bedder v DPP (1954) 1 WLR 1119, the accused who was sexually impotent tried unsuccessfully to have intercourse with a prostitute. She jeered at him and kicked him causing him to lose self-control. He stabbed her twice and killed her. On a charge of murder he pleaded provocation and argued that the proper test was the effect which the conduct of the prostitute would have on an ordinary person and not on a sexually impotent person. Although this case emanates from a notable court, the decision has been highly criticized.

The act which causes death must have been executed in the heat of passion caused by sudden provocation before there was time for temper to cool: this ingredient is tested on the fact whether between the time of the provocation and the time, within which death is caused, there was adequate for temper to cool. Where this fact is established, the defence of provocation must fail. In the case of R v Green (1955) 15 WACA 73 the prisoner’s wife having left him went to stay with her mother where she began to accept the advances of Y. The prisoner tried hard to win her back but failed. At about 9pm one evening, he visited his mother-in-law and found his wife and Y having sexual intercourse. He returned to his own house to brood over his misfortune. At about 1am he took a machete and returned to his mother-in-law’s house to kill Y if he was still there. He found his mother-in-law snoring and heard his wife and Y talking in a dark room. He truck twin on the bed and killed his wife. The mother-in-law was also killed when she ran into the room. On a charge of murder, the prisoner pleaded provocation, but this was rejected because between the provocation and the killing enough time had elapsed for his temper to cool. Clearly if he had killed the couple at 9pm when he first saw them, the plea would have been sustained.

The party who pleads provocation, who causes the death of another must have caused the death of the party who offered the provocation: this ingredient has received judicial blessing in the case of R v Afonja (1955) 15 WACA 26. In this case, it was opined that the doctrine of provocation was never intended to furnish a justification for an indiscriminate vendetta, but if A having received provocation from B fires shot at him in such circumstances as would make the killing manslaughter only, and by accident he kills C who did not offer any provocation to A, the killing is manslaughter and not murder.

The manner of resentment must be reasonably proportional to the provocation offered: this ingredient was given judicial flesh in the cases of R v Nwajoku (1937) 3 WACA 208, Sate v Okpozo (1966) NMLR 1 and R v Rose (1967) Qd. R. 186. Provocation which may cause a reasonable person to retaliate with a slap on the face i.e. excuse as assault may not reduce the murder to manslaughter where the accused severely batters the offender to death with a deadly weapon. But if a man who is provoked retaliates with a blow from his fist on another grown man injury may well be considered and probably would, that there was nothing excessive in the retaliation even though the blow might cause the man to fall and fracture his skull, for the provocation might well merit a blow with the fist. In fact, in the case of R v Akpakpan, a woman brought her daughter’s body; death body home and when her husband remonstrated with her against such conduct. She used filthy and offensive langauge to him and he stabbed her five times with a heavy dagger. It was held that the degree and method of violence used by him precluded the court from reducing the act from murder to manslaughter. See section 318 of the Criminal Code on the ingredients of provocation.