AN APPRAISAL OF PROVOCATION AS A DEFENCE TO CRIMINAL LIABILITY

UNDER THE NIGERIAN LAW

BY

NWANKPA CHIGOZIE KINGSLEY

OF

FACULTY OF LAW
GREGORY UNIVERSITY

UNDER THE SUPERVISION OF: C.S. CHUKWUANU ESQ

II
 AN APPRAISAL OF PROVOCATION AS A DEFENCE TO CRIMINAL LIABILITY
UNDER THE NIGERIAN LAW

BY

NWANKPA CHIGOZIE KINGSLEY

OF

FACULTY OF LAW
GREGORY UNIVERSITY

UNDER THE SUPERVISION OF: C.S. CHUKWUANU ESQ

BEING A COMPULSORY RESEARCH SUBMITTED TO THE FACULTY OF LAW,

GREGORY UNIVERSITY, IN PARTIAL FULFILLMENT OF THE EQUIREMENTS
OF THE AWARD OF BACHELOR OF LAWS LL.B. (HONS.) DEGREE.

COLLEGE OF LAW
GREGORY UNIVERSITY UTURU
ABIA STATE, NIGERIA.

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 DECLARATION
1 NWANKPA CHIGOZIE KINGSLEY, hereby declare that the project work “An Appraisal of
Provocation as a Defense to Criminal Liability in Nigerian Law” submitted to the Faculty of
Law, Gregory University in partial fulfillment of the requirements of the award of Bachelor of
Law LL.B. (Hons.) degree in Law is an original copy except where sources are acknowledged,
carried out by me under the supervision of Mr. CHUKWUMA S. CHUKWUANU.

________________________________ ______________________
Date

_____________________________

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NWANKPA CHIGOZIE KINGSLEY.

CERTIFICATION
This research has been read and approved, having satisfied the requirements of the Faculty of
Law, Gregory University, Uturu for the award of LL.B. (Hons.) Degree.

________________________________ ______________________
Mr. CHUKWUMA S. CHUKWUANU Date
(PROJECT SUPERVISOR)

________________________________ ______________________
Assoc Prof. F.I. ILOH Date:
GREGORY UNIVERSITY UTURU

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 APPROVAL PAGE

This research has been read and approved , having satisfied the requirement of the Faculty of Law,
Gregory University, Uturu for the award of L.L.B. (Hons) Degree.

________________________________ ______________________
Mr. CHUKWUMA S. CHUKWUANU Date
(PROJECT SUPERVISOR)

________________________________ ______________________
Asscc Prof. F.I. ILOH Date:
GREGORY UNIVERSITY UTURU

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 DEDICATION
This Dissertation is dedicated to the Almighty God, the giver of knowledge and to my parents,
through whom he has made all things possible.

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 ACKNOWLEDGEMENT
I wish to express my profound gratitude to God Almighty for without him none of this would
have been possible. He has been my guide and strength throughout the course of my study. My
appreciation goes to my esteemed supervisor, Mr. Chukwuma C.S. for all of his immeasurable
assistance, encouragement and patience during the period of this study. May God bless you
immensely sir.
I wish to also extend special thanks and appreciation to all the lecturers and staff in the Faculty
of Law, Gregory University Uturu: The Dean of the Faculty of Law and all the members of staff
of the Faculty of Law, Gregory University Uturu who have been of great help to me in the course
of this research study in ensuring the successful completion of this work. God bless every one of
you.
I also express deep appreciation to my siblings for their support through the course of my study.
Lastly, my immense gratitude goes to my parents for encouraging and supporting me in my
educational endeavors and for their love, sacrifices and prayers from the beginning to the
successful completion of my studies.

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 ABSTRACT
One of the defenses open to an accused which may mitigate him from criminal liability is the
defense of provocation. The law recognizes that human beings are prone and culpable to losing
control under extreme circumstances to a violent rage and if this leads to a violent reaction,
justice demands that this natural reaction should be taken into consideration in inflicting
punishment. In the first place, there is the important question as to whether in its application to
homicide, is defined by the Codes themselves or by reference to common law, however, the
common law has continued to be a guide in the interpretation of the Code’s provisions. To this
extent, the law of provocation in Nigeria is supplemented by common law principles. For
example, the proportionality rule, though not found in the Nigerian Codes, is frequently
incorporated by the courts in their decisions. Provocation is only a mitigating factor and the plea
of provocation is founded on the loss of self-control both actual and reasonable. The test of
provocation is both a subjective and objective one. Apart from the fact that the accused has
received grace and sudden provocation, he must also have been provoked. The objective element
in provocation emanates from the reasonable man test and includes the proportionality rule.
The proportionality rule states that states that the injury inflicted by another by the person
standing on the plea of provocation as a defense to murder must inflict an injury which was
proportional to the one, he received and must be one as would have caused a reasonable man to
resort to same consequences. The second problem in the plea of provocation is the applicability
of the objective test in Nigeria. Since the Nigerian legal system is influenced by the Islamic law,
reference will be made to the penal code which is governed by the Sharia law of the Muslims in
the northern part of Nigeria. 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.

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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. LIMITATIONS OF STUDY
1.5. RESEARCH METHODOLOGY
1.6 RESEARCH QUESTION
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

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2.5 NATURE OF PROVOCATION
CHAPTER THREE
3.0. INTRODUCTION
3.1. DEFINITION OF PROVOCATION
3.2. ELEMENTS OF PROVOCATION
3.3. DEFENCE TO PROVOCATION
3.4 DEFENCE TO PROVOCATION UNDER THE CRIMINAL CODE
3.5 DEFENCE 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.

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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.

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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.

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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.
R. v. Acott (1997) 1 All E.R.706.
R. v. Adekanmi (1994) 17 N.L.R.99
R. v. Adelodun [1959] W.N.L.R.114.
R. v. Akpakpan (1956) 1 F.S.C. 1.
R. v. Ani Nwokarafor & Ors. (1944) 10 W.A.C.A.221.
R. v. Basil Ranger Lawrence (1932) II N.L.R.6.
R.v. Blake (1942) 8 W.A.C.A. 118.
R. v. Duffy (1949) 1 All E.R.932.

II
R. v. Dythal (1979) 3 Q.B.722.
R. v. Ebok [1950] 19 N.L.R. 84.
R. v. Ekpo (1938) 4 W.A.C.A. 110.
R. v. Green (1955) 15 W.A.C.A.73.
R. v. Igiri (1948) 12 W.A.C.A. 377.
R. v. Igwe F.S.C. 83/1963.
R. v. Lawrence (1993) II N.L.R.; (1933) A.C.699 (P.C).
R. v. McCarthy (1959) 2 Q.B. 105 at P.112.
R. v. Miller (1983) 2 A.C. 161.
R. v. Nwanjoku (1973) 3 W.A.C.A. 208.
R. v. Obiase (1938) 4 W.A.C.A. 16.
R. v. Okoni (1938) 4 W.A.C.A. 19.
R. v. Oladipo Oshunbiyi (1961) All N.L.R.153.
R. v. Onouha (1938) 3 W.A.C.A. 88
R. v. Porritt (1961) 1 W.L.R. 1372.
R. v. Sam Mofor [1944] 10 W.A.C.A. 251.
R. 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.

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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.

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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.

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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.

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 CHAPTER ONE

1.0 INTRODUCTION

It is a serious offence and a serious crime under the common law for a person to cause the death

of another person and no defense can avail such person. However, it soon developed that there is

are buttable presumption that practically every common law crime requires adequate proof of

guilty mind.

Generally, the law presumes that a man intends the natural consequences of his acts.1 The canal

principle of criminal law of intention as it is in the legal maxim ‘actus non fact reum nisi men sit

rea’’ meaning an act does not make a person legally guilty unless the mind is legally blame

worthy.2

The law states that where a person kills another in circumstances which but for the provision of

the section, it would give rise to murder. There are certain unlawful killings which does not

amount to murder as section 3173 provides that any unlawful which does not amount to murder

would amount to manslaughter. Manslaughter may be voluntary or involuntary: involuntary

manslaughter covers cases where there is no intention to kill or cause grievous bodily harm.

Voluntary manslaughter on the other hand occurs when a person intentionally kills another but

the offence is reduced from murder to manslaughter because of provocation.

The provision of section 3184 of the Criminal Code is to the effect that a person is guilty of

manslaughter only if he unlawfully kills another in circumstances which would have otherwise
1
Stephen Emoga vs. The State (1997) 7 SCNJ.518.
2
R vs. Adekanmi (1994) 17 NLR 99.
3
Criminal Code Act Cap ‘C38’ LFN.2004.
4
C.C pg. 128.

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constituted, Murder, so far as it is done in the heat of passion caused by (grave and5) sudden

provocation and before there is time for his passion to cool. The definition of the term

‘Provocation is defined in the Criminal Code under section 2836 and in the case ofObaji v. State7

the Supreme court held that sections 238 and 318 must be read together. 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 aa charge unless the provocation was

such ass to have led an ordinary person to act in the way the accused did.

It must be observed that provocation, where it is a defense, does not negate Mens rea. It is

allowed as a defense because, even though the accused has committed the Actus reus of an

offense with the requisite Mens rea, the law considers that at the moment of commission of the

physical act resulting in the Actus reus, the accused by reason of passion arising from the act of

provocation was not master of his mind.

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.

5
R v. Nwanjoku (1973) 3 W.A.C.A. 208.
6
C.C.pg.118.
7
[1965] All. N.L.R. 269.

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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 3188 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.

8
Ibid pg.7

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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. 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:-

i. 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.

ii. Financial Constraint: Insufficient fund tends to impede the efficiency of

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the researcher in sourcing for the relevant materials, literature or information and

in the process of data collection (internet, questionnaire and interview).

iii. 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.

1.5 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. S9

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

9
96 Fed. 837, 37 C.C.A.588.

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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.

1.6 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.

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 CHAPTER TWO

2.0 LITERATURE REVIEW

2.1 CRIMINAL LIABILITY

Lawmakers, technically, decide what a crime is. No act is a crime until it is recognized as such

by society and written into the states’ and federal criminal codes. We may think certain acts have

always been crimes or as treated as crimes everywhere, but that is not the case. For example,

U.S. law historically did not recognize the rape of a wife by her husband until relatively recently.

An act is a crime only if a state or the federal government defines it as one. In most states, crimes

are classified as either felony (more serious crime), misdemeanors and simple offences.

Criminal liability refers to responsibility for a crime and the penalty the society imposes for the

crime. Because crimes can cause harm to the society as a whole (in addition to the victim(s)), a

prosecutor brings charges against the offender on behalf of its citizens.

A person can be found liable for a crime if the prosecution proves that the person committed the

criminal act (such as stealing) and had the required the required the intent to hold the person

accountable (such as intent to deprive the owner of the property).

In order to hold someone accountable for a crime, the prosecutor must prove that they harbored

the required level of criminal intent called the Mens rea and must also perform the act or attempt

to perform the act ad this is the Actus reus. The prosecutor must prove that the defendant

intended to wrongfully deprive the rightful owner of the property and to actually take or attempt

to take the property.

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Usually, criminal liability rests upon the person who directly committed the act. But, liability for

a crime can reach beyond those directly beyond those directly involved in the act and this is

called vicarious liability. There is also strict liability which is an exception in criminal law and

not the rule. The rationale for strict liability crimes is that certain acts justify imposing criminal

liability regardless of intent e.g. traffic laws etc.

Criminal liability law also recognizes situations in which the person who personally and directly

engaged in the criminal act should not be held liable for the crime; this is in cases where the

accused the is incapable to form criminal intent. The rationale for exempting such individuals

from liability is that these people are unable to form the type of intent required to make it fair to

hold them to account to the crime

A person found criminally liable by being convicted of a crime may be sentenced to serve time

in jail or prison, to pay a fine, or both states.

The law on criminal liability varies depending on the particular crime charged, the jurisdiction in

which the person is charged, and other factors specific to the age.10

2.2 DEFINITION OF CRIME

This is a behavior that the law makes punishable as a public offense. The elements of a crime

typically come from statutes, but may also come from the common law where the criminal

common law still carries force.

Crime is behavior, either by act or omission, defined by statutory or common law as deserving of

punishment. Conduct that is lawful in one country or jurisdiction may be lawful in another, and

activity that amounts to a trivial infraction in one jurisdiction may be a serious crime elsewhere.
10
England D, Criminal Liability, (NOLO) https://www.criminaldefenselwyer.com/resources/criminal-liablity. >
Accessed 8thJune 2021.

II
Changing times and social attitudes may led to changes in criminal law, so that behavior that was

once criminal may become lawful. For example, abortion once prohibited is now lawful in some

countries while being unlawful in others11.

Although most crimes require the element of intent, certain minor crimes may be committed on

the basis of strict liability even if the defendant had no specific mindset with regard to the

criminal action.

Okonkwo and Naish, a leading author in criminal law defines crime as the breaches of the law

resulting in special accusation procedure controlled by the state, and liable to sanction over and

above the compensation and cost.

Glanville Williams12 defines crime to be a legal wrong that can be followed by criminal

proceedings which may result in punishment, he considers crime to be a conduct which will

include a formal and solemn condemnation of the community.

Some crimes are considered mala prohibita (‘bad because prohibited’); these are prohibited by

statue but are not inherently evil. Other crimes are considered mala in se (‘bad in themselves’);

these are considered inherently evil under general community standards. The idea of mala in se

formed the original justification for common law crimes. However, many crimes that prohibited

by statute also belong to the category of mala in se

Crimes are prosecuted by government attorneys. Such attorneys may represent a city, state, or

the federal government. Examples include the Attorney General of Nigeria, the Attorney general

of a state in Nigeria.

11
Allot A.N., Crime-General Principles of Criminal Law, (Britannica), https://www.Brittanica.com. > accessed 19th
June 2021.
12
Criminal Law (2nd ed., Stevens and Sons Limited, London, 1961) P.11.

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Crimes are ranked under section 313 of the Criminal Code Act as felonies which is any offence

declared by law to be a felony, or is punishable without proof of previous conviction, with death

or with imprisonment for three years or more, a misdemeanour which is any offence declared by

law to be a misdemeanor, or is punishable by imprisonment for not less than six months, but less

than three years and simple offences which is any offence that is not in the above two.

2.3 GENERAL PRINCIPLES OF CRIMINAL LIABILITY

Criminal liability is rarely used to describe the findings of fact. It is usually used at the second

stage of the trial to describe the findings that not only did the accused do the act or make the

omission with which he is charged but also that he is responsible for it14

An offence is defined as an act or omission which is rendered punishable by some legislative

enactment15. The elements of an offence/crime usually consist of two elements-physical and

mental. This is captured by the Latin maxim actus non facit reum, nisi mens sit rea, which means

the act itself does not constitute guilt unless done with a guilty mind. As stated in the case of

Adekoya v. The State16. An offence is an act or omission done or omitted to be done in a

particular state of mind. For, example in the offence in section 394 of the Criminal code, the

physical element is the killing of an animal capable of being stolen; the mental element is the

intent to steal the carcass

The criminal trial in systems derived from English law is accusatorial in nature; i.e. it partakes of

a battle between the prosecutor and the accused. Here the prosecution brings a particular

charge(s) as it thinks are sustained by the facts of the case. And the accused tries to disprove toe

13
C.C.
14
Richard. C, Criminal Law, (13th ed, Butterworth 1995) P.19.
15
C.C Act Section 2.
16
(2010) LPELR – 3604 (CA).

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facts in relation to the case. The prosecution must generally prove all the elements of the offence

as charged as defined by law and must fail if it cannot do so (though it may be relieved of this

burden in respect of certain facts of which the court must take judicial notice).

The two broad elements under the law are:

1.Actus reus: this means ‘guilty act’, and generally refers to an overt act in furtherance of a

crime.

2.Mens rea: this mean to have a ‘guilty mind’. The rationale behind this is that it is wrong for

society to punish those who innocently cause harm although this does not apply in strict liability

cases.

2.4 ACTUS REUS

Actus reus refers to an ‘Act’ in the usual sense of that of that term, it has much a wider meaning,

it involves the conduct of the accused person, its result and those relevant surrounding

circumstances and consequences or state of affairs 17. The actus reus of an offence is often

explained as being the conduct element of the crime. In this context though, the word, conduct

frequently embraces much more than the positive performance of a single physical act18.

Actus reus is commonly defined as a criminal act that was the result of voluntary body

movement. This describes a physical activity that harms another person or damages property.

Anything from a physical assault or murder19 to the destruction of public property would qualify

as an actus reus.

17
Curzon LB, Criminal Law P23-24.
18
Elliot and Woods, Criminal Law, (9th ed, Sweet Maxwell,2006) P.75.
19
Section 316 of Criminal code; section 221 of the Penal Code.

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Another aspect of actus reus can be found in the requirement that certain crimes demand a

particular consequence (or result) ensues from the conduct. A simple and obvious example

would be that murder which requires the defendant’s conduct to cause the consequence of the

victim’s death.

Omission, as act of criminal negligence, is another form of actus reus. A person can be held

responsible standing with another person in whom there is a relationship, the law imposes

responsibilities persons with whom you have relationship with, and failure to act may be

regarded as actus reus. Where there is no such relationship with such a person then no crime has

been committed in R v. Miller20, it was held that the omission to act does not constitute a criminal

act, since there was no obligation to act as provided by the law, but where there is a provision to

act, a failure to act, will amount to a crime , for example parents must provide care for their

children, also in R v. Dythal21, the court held that the officer was liable for the act.

Actus reus and causation are intertwined as causation cannot be explained without actus reus,

this is because something must cause the act and causation helps to know what really lead to the

crime. The law is that a person intends the natural consequences of his act. In the case of

Oludamilola v. State22 Ogbuagu J.S.C said

‘It was in evidence that the deceased was shot onthe side of

the stomach at a close range, it would cause no surprise if

death is the result, the likely consequence of the appellant’s

conduct is death of the victim and a reasonable man will consider

20
(1983) 2 AC 161.
21
(1979) 3 QB. 722.
22
(2010) 3 MJSC (Pt11) 108 at 120.

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 such an act to be the natural and normal effectof the appellant’s act’.

Thus, Ogbuagu J.S.C said, the law is that a person intends the natural consequences of his act.

Actus reus does not mean the act or the conduct of the accused alone but also includes the result

of their actions and conduct. It comprises of all the ingredients of an offence or crime.

(i) AN ACT23

The common basis of actus reus is the act, however, there are different requisite for different

offense, for instance, in murder the act of killing is required, in rape the act of sexual intercourse

is required. A man is capable of committing an offense if with intent to commit it he begins to

put his intention into execution by means allotted to its fulfilment and manifest intention by

some overt act24.

There are various offences where it is enough that the accused is in possession of something in

defiance of the law even though he has not begun to put them to any unlawful use. Moreover a

man may ‘have possession’ for the purpose of the law even though another has the actual

possession for the custody of the thing in question 25 whether or not offenses of unlawful

possession involve punishment of a mere passive state of affairs rather than an act, in certain

offences the law punishes a state of affairs largely beyond the control of the accused . Various

common law jurisdictions define an act differently but generally an act is a bodily movement

whether voluntary or involuntary.

Intention on its own, however wicked or dangerous it might be if put into execution, is not

generally forbidden or punished by law until the man with the intention begins to put it into
23
The act must nearly always be the act of the accused, except in offences of vicarious liability where the act is that
of another.
24
Section 96 of the Penal Code, see also Garba vs. The State (2000) FWLR (Pt.24) 1405 at 1405 and Ala Chukwu vs.
The State (1990) 12 SCNJ P.71.
25
C.C.s.1(1); see R. v. Uko (1939) 5 W.A.C.A. 63 (possession through an accomplice).

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execution. The main reason for this principle is that to control people’s state of mind alone is

exceedingly difficult, and to try to do so is set too narrow a limit on an individual’s freedom.

Although intention alone is not sufficient, the law is often ready to intervene at the slightest

manifestation of the intention. A small gesture could be the actus reus of an assault. A slight

movement of property can constitute the actus reus of stealing and one can be guilty of an

offence merely by counseling it.

(ii) AN OMISSION.

There is no general rule to determine when an omission or failure to act will amount to the actus

reus of a crime and when it does not; it therefore calls for a specific consideration of the

definition of each crime, to determine whether an omission can constitute the actus reus of the

crime. Failure to act may have as serious consequences as an act, and although any difference

between acts and omission is often denied, the distinction is deeply embedded in the law. This

fact is no less in escapable because there is no precise test for distinguishing an act from an

omission26. It should be noted that the majority of crimes can be committed by acts rather than

omissions as the law is generally reluctant to punish omissions. But there are some notable

exceptions (e.g. in murder and manslaughter) where it is essential to force people to at, and a

duty to act is imposed, breach of which is an offence. The criminal code alone provides quite a

long list of these provisions. Thus, duties are imposedon peace officersto suppress riots 27, on

members of ships’ crew members to obey orders 28, on those in charge of railway trains or of

ships and on ships’ engineers, to ensure the safety of passengers 29etc. A breach of these duties is

an offence.
26
Glazers Brook P.R. Criminal Omission, (1960) 76 L.Q.R.386 at 387.
27
C.C.s.199. The general public has a duty to assist-C.C.s.200.
28
C.C.Chap.52.
29
C.C.ss.346-348.

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Section 343 of the Criminal code specifies a number of duties where negligent omission will be

criminal-e.g., omissions to take precautions against probable dangers by anyone who handles fire

or explosives or who is in charge of machinery. Chapter 26 provides that one whoomits to

perform a duty in respect of preservation of life is deemed to have caused the consequences

resulting from the omission, e.g. it is an offence to fail to supply the necessaries of life if danger

to health is likely to result, and where there is a duty to do so 30. In Gibbons and Proctor31 the

father of a child and his partner were convicted of murdering the child who had died as a result

of their withholding food from it. The father had breached the duty owed by parent to care for

their children while proctor, by taking money tobuy food had assumed a duty towards the child,

statute has largely intervened in the case of parent’s duty to their children for a case on willful

neglect under the Children and Young Person’s Act 193332.

The reasons why omissions are not often made criminal is simply that human nature being what

it is, it would be harsh if men were to be pushed too far by the criminal law 33 into doing their

neighbourly duty. Specific duties can always be added to the list if there is felt to be an

unwarranted gap in the criminal law.

(iii)MENS REA.

There is no need to go into the remote history of mens rea; it suffices to say that the requirement

of a guilty state of mind (at least for the most serious crimes) had been developed by the time of

30
C.C.s.202.
31
(1918) 13 C.R APP.R.P.134.
32
Elliot and Wood’s, Criminal Law P.78.
33
Cf. lord Macaulay in his Notes on the Indian Penal Code: ‘it is evident that to attempt to punish men by law for
not rendering to others all the service which it is their duty to render to others, would be preposterous. We must
grant impunity to the vast majority of those omissions which a benevolent morality would pronounce
reprehensible, and must content ourselves with punishing such omissions only when they are distinguished from
the rest by some circumstances which marks them out as peculiarly fit objects of penal legislation.’ Compare the
law’s unwillingness to punish mere intention and negligence.

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Coke, which is a s far back as the modern lawyer needs to go. If one shoots at a wild fowl upon a

tree, and the arrow killed any reasonable creature afar off without any evil intent in him, this is

per infortunium34.

Mens rea refers to the mental element (state of mind) necessary for the commission of a

particular crime. The state of mind that the prosecution, tosecure a conviction, must prove that a

defendant had while committing a crime. It can also relate to criminal intent or recklessness.

Mens rea is the second of two essential elements of every crime, at common law, the other being

actus reus35.

It may be said that any theory of criminal punishment lads to a requirement of some kind of

mens rea. The deterrent theory is workable only if the culprit has knowledge of the legal

sanction, and if aman does not foresee the consequences of his actions, he cannot appreciate that

punishment lies in store for him if he does it. The retributive theory presupposes moral guilt;

incapacitation supposes moral danger, and the reformative aim is out of place if the offender’s

sense of valves is not warped36.

Most offences require proof that the accused committed the actus reus in aparticular state of

mind, e.g. that he intended the actus reus, or knew that it might result from his conduct. The

guilty mind instigates the guilty act. There are instances where the mens rea is followed

automatically by the actus reus. The above element of proximity apart, there could be instances

of spontaneity too37. It is enough to note, at this juncture, that there are some offences where the

prosecution need not prove any mental element against the accused. These are the offences of

strict liability. There are also offences where it is sufficient to prove that the accused was
34
Elliot and Wood’s, Criminal Law P.78.
35
Black’s Law Dictionary (Ninth Edition) P.1075.
36
Williams. G. Criminal Law, P.30.
37
Niki Tobi Jsc in Abeke vs. State (2007)9 NWLR (pt.1040) p.411 at 429.

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negligent or careless, some writers do not regard these as offences involving mens rea 38, because

negligence does involve proof of a particular state of mind. Others do 39. In considering mens rea

there are some ingredients that must be considered such as intention, knowledge, recklessness.

1. INTENTION

If the intention to cause the particular result is not expressly declared tobe an element of an

offence, then the result intended to be caused is immaterial 40. Intention was defined by the Court

of Appeal in the United Kingdom as:

‘A decision to bring about, in so far as it lies within the accused’s power,

(a particular consequence), no matter whether the accused desired that

consequence of his act or not’.41

Intention is the mens rea term which conveys the highest level of culpability of an offender. If a

person intends to cause an outcome, he is more culpable than a person who acts recklessly i.e.,

who acts knowing that the result might occur. It is important to define the boundary between

intention and recklessness not only to determine the degree of culpability of the offender for

sentencing purposes, but also liable to conviction where the offense charged is one which

requires intention to be proved42.

Usually a man in law is said to intend a happening if he foresaw it and also desired it 43. In

Hyamv. D.P.P44 dealing with intention in cases of murder, the House of Lords held that there is

38
E.g. Glanville Williams, pp. 102-103.
39
E.g. Hart in Oxford Essays in Jurisprudence, p.33.
40
C.C.s.24.
41
Mohan (1976) QB1 at 11; Pearman (1984) 80 Cr.App.R.259.
42
Elliot and Wood’s, Criminal Law, P.88.
43
Okonkwo and Naish, Criminal Law, P.51.
44
[1974] 2 All E.R.41.

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intention to cause death or grievous bodily harm if the accused deliberately and intentionally did

an act knowing that death or grievous bodily harm was a probable consequence of it, even

though he did not desire that result. Most crimes require proof of some kind of intention.

2. KNOWLEDGE

It is often required in the definition of a particular crime that the accused must have knowledge

of a particular existing circumstances e.g. on a charge of possessing counterfeit money, he must

know that he possesses it45 and that it is a counterfeit.

The Black’s Law Dictionary defines knowledge as ‘an awareness or understanding of a fact or

circumstance, a state of mind in which a person has no substantial doubt about the existence of a

fact’.46

The state of mind for the purposes of criminal liability is the so-called ‘willful blindness’.

English criminal law has commonly treated a person as knowing something if being sure that it is

so, he deliberately avoids making an examination or asking questions that might confirm the fact

or he avoids taking advantage of an available means of actual knowledge, it is this stage of mind

which we believe has to be captured by a short form of words; therefore treats a person as acting

knowingly with respect to a circumstance not only when he is aware that it exists or will exist,

but also when he avoids taking steps that might confirm his belief that it exists or will exist47.

45
R. v. Onouha (1938) 3 W.A.C.A. 88; R. v. Obiase (1938) 4 W.A.C.A.16.
46
Black’s Law Dictionary P.950.
47
Elliot and Wood’s, Criminal Law, P.114.

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Statute may require knowledge expressly by the use of the word knowledge, intention, or one of

its variants, but where an express requirement is not included in the statute, the courts have

frequently implied such a requirement.

Where knowledge is required a court may be satisfied that willful blindness suffices, thus in

WEST MINISTER COUNCIL VS CROYALGRANGE LTD48 Lord Bridge stated that,

‘it is always open to the tribunal of fact, when knowledge on the part

of a defendant is required to be proved, to base a finding of

knowledge on evidence that the defendant had deliberately

shut his eyes to the obvious or refrained from inquiry

because he suspected the truth but did not want to have

his suspicion confirmed’

Also, under the criminal code for a person to be regarded as an accessory after the fact 49 the

person must have had the knowledge that the person being assisted by him is guilty of an offence

as Section 10 of the Criminal code clearly provides that:

A person who receives or assists another who is, ‘to his knowledge’

(emphasis supplied), guilty of an offence in order to enable him to

punishment is said to become an accessory after the fact…

3.RECKLESSNESS

48
(1986) 2 All ER 353-359.
49
Section 10 Criminal Code.

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A man may foresee what is likely or probably going to happen but does notactually desire it, and

he may indeed desire it not to happen. Such a condition of mind is often called recklessness-a

term which, it must be stressed, is only a term of convenience50.

The precise nature of the foresight necessary may vary. Clearly a man is not reckless who

foresees a criminal consequence as only a remote possibility. Equally clearly, if he foresees it as

certain to happen, that is tantamount to a finding that he desired it and therefore intended it. 51

Between these two extremes is a whole range of degrees of probability: consequences may be

described, for instance, as possible, reasonably likely, likely, probable, or very probable.

In the Criminal Code the commonly used word is ‘likely’ 52, on the meaning of which there is

little authority. In R. v. Okoni53, it seems in section 316(3) to mean ‘reasonably probable’; in

Idiong v. R54. a consequence was said not to be likely if a reasonable man would not expect it.

A judgement of recklessness uses the concept of the reasonable man only as a guide to what

went on in the accused’s mind, and only as it can plausibly be assumed that the accused’s mind

accorded with the normal at the time of the act

2.5 CONCLUSION

According to human experience every man tends to react to provocation according to its nature

and degree. Vulgar abuse for a vulgar abuse, a light blow for a light blow and if the provocation

is really gross and there is a weapon readily available, with that weapon, it is respectfully

submitted that the mode of resentment to bear a reasonable resemblance to the provocative act of

50
Okonkwo and Naish, Criminal Law, P.51.
51
Glanville Williams, pp.38-42; but not where he foresees that his own lawful conduct will result in crime by
someone else- Beatty v. Gillbanks (1882) 9 Q.B.D.308.
52
See, e.g. ss.49A (1); 59;81; 207 (1); 243(2); 247(b); 249 (d); 316 (3); 320 (2); 345; 347; 373.
53
(1938) 4 W.A.C.A. 19.
54
(1950) 13 W.A.C.A.30.

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the deceased would appear to accord with common sense and perhaps it could be explicitly

provided for in our code.55 In Nigeria the Criminal Code and the Penal code have provided

explanations to the act of provocation and killing due to provocation and it should be clearly

understood that these Codes through their provisions have made it so that if the courts uphold a

plea of provocation, the criminal liability of the accused can only be mitigated and the offence

can only be reduced from murder to manslaughter and this is because no amount of provocation

can justify a killing and the courts do not operate to justify a killing as to exculpate an accused

person from punishment.

CHAPTER THREE

3.1 NATURE OF PROVOCATION

Provocation is one of the numerous defenses to criminal liability in murder cases recognized in

Nigeria, it should be noted however that it only serves as a mitigating factor and does not fully

avail one from criminal liability. The defense is not available on any charge other than murder:

provocation is generally regarded as a matter which goes into mitigation of a sentence, being

insufficiently fundamental to qualify as a complete defense 56. Jurisprudentially, the defense of

provocation is based on the law’s compassion for human weakness. If a crime is caused by

provocation, it is said to be committed in the heat of passion, under an irresistible urge incited by

the provoking events, and without being entirely determined by reason. From earliest times, it

has been recognized that human beings are prone to losing their control under extreme rage and

if they react violently, justice demands that their rage should be taken into account when

inflicting punishment. Provocation offered by the victim or deceased render’s the accused
55
Kharisu S. Chukkol: Defenses to Criminal Liability in Nigerian Law. P.101.
56
A.J. Ashworth, The Doctrine of Provocation, Cambridge Law Journal Vol.35, No.2 (Nov 1976), pp, 292,
https://www.jstor.org. > accessed 18thJune 2021.

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subject to temporary loss of self-control; this concept is recognized under the English Law of

crime as a defense and mostly a mitigating factor to a homicide charged57.

3.2 DEFINITION OF PROVOCATION

‘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. In other

words, provocation is something which causes a reasonable person to lose control58.

In Osborne’s Concise Law Dictionary, provocation is defined to mean words or conducts which

are sufficient to prevent the exercise of reason and which temporarily deprived a reasonable

person of his self-control. Literally, provocation means ‘an action or event that makes someone

angry’ i.e., the intentional causing of annoyance or anger to another person that makes him react

violently. When provocation is used generally, the above is presumed, but when used technically

then provocation is viewed from a legal perspective59.

Black’s Law Dictionary defines provocation as ‘something (such as words actions) that arouses

anger or animosity in another, causing that person to respond in the heat of passion’. The latest

and the most current edition of same dictionary defines it thus:

1. The act of inciting another to do something, especially to commit a crime, 2. Something (such

as words or action) that affects persons reason and self-control, especially causing the person to

commit a crime impulsively. The Criminal and Penal Codes 60 respectively defines killing on

provocation in strikingly similar wordings.

57
Ibid P11.
58
Cornell Law School, Provocation (Cornell Law School), https://www.Law.cornell.edu. > accessed 15th June 2021.
59
Abdulrazaqq A. A Critical Appraisal of the Extent and Limit of the Defence of Provocation in Murder Charges in
Nigeria, (2010) The Jurist, A Publication of the LSS UniIllorin. P.59.
60
C.C.s.318; P.C.s.222.

II
Section 318 of the Criminal Code:

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.

Section 222 of the Penal Code:

Culpable homicide is not punished with death if the offender whilst deprived of the power of

self-control by grave and sudden provocation causes the death of persons who gave the

provocation or causes the death of any other person by mistakes or accident.

While section 238 of the Nigerian Criminal Code defines provocation as follows:

The term ‘provocation’, used with references to an offence of which Is an element, includes,

except as in hereafter 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 in a conjugal, parental, filial, or fraternal,

relation, or in 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 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

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committing an assault, is not provocation to that other person for an assault. An arrest which is

unlawful is not

Necessarily provocation for an assault, but it may be evidence of provocation for an

Assault, but it may be evidence of provocation to a person who knows of the illegality.

The court of Appeal in the case of Oniya vs. State gave a brief but lucid definition as well as the

essential ingredients of what constitutes provocation in the following words:

Provocation means an act done by the deceased which would cause in anyreasonable person and

actually does cause in the accord, a sudden and temporaryof self-control rendering the accused

so subject to passion as to make him for a moment not master of his own will61.

The defense of provocation is not a complete defense that exonerates the accused; rather it only

reduces the punishment. According to Glanville William, ‘Provocation is a legal defense, but no

one that allows the defendant to go free; if the jury accepts the defense, they returned a verdict of

manslaughter.

3.3 ELEMENTS OF PROVOCATION

No amount of provocation can ever justify a killing. The most that it can do is to reduce murder

to manslaughter. Before a plea of provocation will succeed, certain conditions have to be

satisfied:

1. The provocation must be such as to cause a reasonable person to lose his self-control. The test

is the effect which the provocation would have on a reasonable man, not the effect which it did

actually have on the accused62. A question that readily comes to mind is ‘who is such a

61
Onya v. State (2006) 2 WNLR (PT 991) 271.
62
R.v. Nwanjoku (1937) 3 W.A.C.A. 208; R. v. Adekanmi (1944) 17 N.L.R.99.

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reasonable man to be so unreasonably provoked?’. A reasonable man in this context has been

held to mean a reasonable man in the accused person’s station in life and standard of civilization.

In R. v. Adekanmi63,Francis J. held that in considering provocation-

“The effect it would be expected to have on a reasonable man, must

be taken to mean‘the effect it would be expected to have on a

reasonable man of accused’s standing in life’for it would, I think,

be improper to examine the question in the light of what would be

sufficient provocation in the case of an educated and civilized person.

The accused, be it noted, is an illiterate and primitive peasant of this country,

and it must be beyond doubtthat the passions of such a type are far more

readily aroused than those of a civilized and enlightened class64.

It is now beyond question that in considering provocation, the courts in Nigeria must take into

account the cultural status of the accused person. This relevant because an act committed by the

deceased against an illiterate and primitive person may amount to legal provocation while it may

not do so against “an educated and civilized person”. 65For instance, “in primitive communities

where the subjection of women is accepted as natural and proper”, an insult such as wife taunting

her husband with incompetence and spitting in his face, “arouses more passion than in more

sophisticated societies”.66

63
(1944) 17 N.L.R.99.
64
Followed in R. v. Igiri (1948) 12 W.A.C.A.377.
65
See Afonja v. R. (1955) 15 W.A.C.A. 26 at P.28.
66
R.v. Igiri (1948) 12 W.A.C.A.377. In applying the test of the average man in the community, a judge should not
merely accept what a witness says that he would do in the circumstances as the reaction of the average man in
that community; Nunyiewa v. State [1972] 11 ALL N.L.R.(Pt.2) 493.

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In Bedder v. D.P.P.67 The House of Lords upheld a direction that the proper test was the effect

which the conduct of the prostitute would have on an ordinary person, not a sexually impotent

person. Their Lordships have however held in a recent case D.P.P. v. Camplin68that Bedder

v.D.P.P. should no longer be followed69 in Camplin the House of Lords held that under section 3

of the Homicide Act 1957 the jury could in applying the reasonable man test take into account

everything including the physical peculiarities of the accused such as his age, colour, sex,

physical and mental disabilities.

This is a very welcome decision which introduces some fairness in applying the test of a

reasonable man.70 Although based on section 3 of the Homicide Act there is nothing in the Code

definition of provocation which prevents our courts from adopting this more liberal approach.

2. The act which causes death must be done in the heat of passion caused by sudden provocation

and before there is time for his passion to cool. If between the provocative act and the killing

enough time has elapsed for passion to cool, a plea of provocation will fail. In R. v. Green,71 the

period of waiting (about four hours) destroyed the excuse of sudden provocation because the

accused in the opinion of the court had time for reflection. The facts of the case were that the

accused abandoned him and went to her mother’s house. The husband tried in vain to win her

back to no avail. One day around 9:00pm the husband went to see his wife in his mother-in-law’s

house and found his wife and another man having sexual intercourse. The husband returned

home immediately; he came back around 1:00am with a machete to see if the man was still there.

He found his mother-in-law snoring and heard the voices of his wife and the man in a dark room.

67
[1954] 1 W.L.R 1119; [1954]2 ALL E.R.801.
68
[1978] 2 W.L.R.679; [1978] 2 ALL E.R.168.
69
As also Mancini v. D.P.P. [1942] A.C.1.
70
See Ashworth,” The Doctrine of Provocation” [1976] C.L.J. 292 at pp. 298-302.
71
(1955) 15 W.A.C.A. 73.

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He massacred the wife and mother. His plea of provocation was rejected because between the

provocation and the killing, enough time had elapsed for his passion to cool. Clearly if he had

killed them at 9:00pm when he first saw them the plea would have been good.

The passion must have been caused by sudden provocation, i.e. by a sudden wrongful act or

insult. This is an aspect of the principle that there must be no cooling time. In deciding whether

the provocation was sudden, previous wrongful acts and insults by the deceased are not sufficient

because they do not supply the requirement of suddenness. Yet, if the deceased subsequently

does another wrongful act to the accused which may appear trifling, it is legitimate to take into

account the previous provocative acts in order to determine whether the last wrongful act

amounted to sufficient provocation.72

“The final wrongful act or insult might, of itself, be comparatively trifling, but when taken with

what had gone before, might be the last straw in a cumulative series of incidents which finally

broke down the accused’s self-control and caused him to act in the heat of passion”73

3. Provocation by one person is no excuse for killing another person who does not in fact offer

any provocation to the accused.74In R. v. Ebok75 where the accused met four women, one of

whom was his ex-wife who had since married another man. He demanded the cloth she was

wearing and as she was untying it at the insistence of another woman, he stabbed her several

times and killed her. He overtook one of the other three women as they were running away and

killed her. He was charged with the murder of his “ex-wife” but was convicted of manslaughter

on the ground of provocation. On a further charge of murdering the second womanit was held

that even if the accused lost his self-control as a result of the provocation given by his “ex-wife”,
72
Mehemet Ali v. R. [1957] W.A.L.R.28.Cf.
73
Greyson v. R. 1961 R.& N.337.
74
R. v. Porritt. [1961] 1 W.L.R. 1372.
75
(1950) 19 N.L.R.84.

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he was nevertheless guilty of murder because the second woman did not give him any

provocation.

Sometimes, however, provocation given by a group of persons acting in concert may be

successfully pleaded where the person so provoked kills a member of such group.76

4. The mode of resentment must bear a reasonable proportion to the provocation offered, 77 and

in considering thus question the courts take into account the nature of the instrument with which

the homicide was effected,78 and the nature of the act resulting from the provocation.79

Provocation which may cause a reasonable person to retaliate with a slap on the face, i.e. excuse

an assault may not reduce murder to manslaughter where the accused savagely batters the

offender to death with a deadly weapon. Bur “if a man who is provoked retaliates with a blow

from his fist on another grown man a jury may well consider, 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 provocationmight well merit a blow from the fist. It would be quite another

thing, however, if the person provoked not only struck the man, but continued to rain blows upon

him or to beat his head on the ground.”80

In R. v. Akpakpan,81 a woman brought her daughter’s dead body home and when her husband

remonstrated with her against such conduct, she used filthy and offensive language 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 bringing a verdict of manslaughter.

76
R. v. Ekpo (1938) 4 W.A.C.A.110.
77
R. v. Nwanjoku supra.
78
In State v. Mohammed [1969] 1 N.M.L.R.296 the court took into account the fact that the dagger used by the
accused, a Kanur, was worn by his tribe as an ornament.
79
R. v. Akpakpan (1956) 1 F.S.C.1.
80
R. v. McCarthy [1954] 2 Q.B. 105 at p.112, per Lord Goddard.
81
Supra.

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In R. v. Adelodun,82 after the loss of a local council by A’s first cousin, A was provoked by

abusive songs against his family. He lost his self-control and killed one of the singers with a

machete. The post-mortem examination revealed that the deceased had about ten wounds some

of them very severe. Holding that the plea of provocation failed the court pointed out that the

injuries inflicted on the deceased were so severe and so many and the weapon used such that the

mode of retaliation was out of all proportion to whatever the deceased said or did to A.

provocation can be caused by different things like words or by conduct.

PROVOCATION BY WORD

The definition of provocation in section 28383 brings our law into conformity with the position of

the English Criminal Law. It is recognized that provocation can be caused by things done or said

or by both together. In the case of Danshallah v. State84,the Supreme Court in this case said

“it is not disputed that words alone can constitute provocation but it all depends on the actual

words use and their effects or what they mean to a reasonable person having a similar

background with the accused person”

The Penal Code is silent on the question of whether abusive words not accompanied by an act

can constitute provocation. In the case of Adamu Kumo v. State85 the Nigerian Supreme Court

held that calling a Moslem a pagan would amount to a provocative incident.

In Akanni Ogundimu v. State86 the court in this case established that:

82
[1959] W.N.L.R. 114.
83
Ibid p32-33.
84
(2007) 12 M.J.S.C .1.
85
(1967) 1 ALL N.L.R.289, Bairaman JSC.
86
(1979) 13 C.A. 12.

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I. The words of mere abuse may constitute annoyance but not provocation. ii. That series of

disappointing events which may not constitute provocation in law, may constitute motive for

killing.87 iii. In determining whether a reasonable man of accused status in life could be

provoked, the fact that he is a soldier or police man or a person in the discipline of force or

question of culture, belief, or society, including a sportsman who is expected to be disciplined

and of sober behavior is relevant and should be considered.

PROVOCATION BY CONDUCT.

Assault which are unlawful and conduct which are injurious to a person’s reputation are regarded

as sufficient act of provocation to reduce the offence of murder to manslaughter.

In a case were the accused and the deceased had rationed their food and after finishing his own,

the deceased attempted to snatch the accuser’s plate in the struggle that followed, the deceased

poured some soup on the cloth, where upon he was stabbed by the accused who was greatly

annoyed. The F.S.C accepted the offence of provocation and observed that any ordinary person

in the accused position would have acted the way he did.

In Nga’aba v. Queen88, the accused met the deceased having sexual intercourse with his wife, the

accused then attacked the deceased. His defence was that, because of the provocative act of

adultery and subsequent assault, he was completely thrown off balance and thereby stabbed the

deceased to death and he pleaded provocation. It was held that the illicit union and subsequent

attack made on the accused were such that it would be sufficient provocation to mitigate the

liability of the accused from murder to manslaughter. Thus, provocative act whether in conduct

or in words must be capable of making a reasonable man lose his senses and self-control.

87
Shande v. State (2005) 22 NWLR (Pt11) 756.
88
(1969) NNCN 97.

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5. The killing must have involved an assault. This requirement is essential if the meaning of

provocation in section 318 is contained in section 283 which refers to an offence of which an

assault is an element. If it is remembered that the definition of assault in the Code includes a

battery then it becomes clear that every killing on provocation must involve an assault.89

3.4 DEFENCE OF PROVOCATION

The term provocation includes any assault, wrongful act or insult of such nature to likely be done

to an ordinary person or in the presence of an ordinary person to another.

In Ejalofu v. Queen90 the deceased who had deserted her matrimonial home later referred to her

husband as a slave. The husband was provoked and stabbed her to death. The court held that

“insulting words may also amount to provocation under section 222 (2) of the Penal Code.

Provocation must be such as to cause a reasonable man to lose his self-control. The test is that of

a reasonable man. A reasonable man in this context has been held to mean a reasonable man in

the accused’s person’s station in life and standard of civilization. In R. v. Adekanmi,91Francis J,

“was of the view that reasonable men are men of education and civilization,

who have the attribute of sobriety and who is not hypertensive or hot tempered

and who cannot be easily aroused.”

89
For the definition of an assault see s.252. See (1960) 33 A.L.J.323 at 358 for the view that the phrase “with
reference to an actual offence of which an assault is an element” must mean “with references to offences and the
actual commission of which is proved, inter alia, by proof of the commission of an assault.” See also R. v. Pickett
[1972] Qd. R. 425, upholding this view and refusing to follow R.v. Williams [1971] Qd. R. 414; R.v. Kaporonowski
[1972] Qd. R. 456 at 493.
90
(1962) 1 ALL NLR P.22.
91
Ibid 33-34.

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. He attributed aggression and high passion to illiterate andprimitive people. This view has been

criticized by criminologists, scholars, and writers on the grounds that there is no scientific proof

to that effect.

Also, an act that will constitute a provocation if done to a member or class or community may

not amount to provocation if done to another, i.e. a peck to an Ijabite lady may be provocation

while it might not be provocation if done to a socialite lady.

3.4.1 DEFENCE OF PROVOCATION UNDER THE NIGERIAN CRIMINAL CODE

The applicable law that governs criminal matters in the southern part of Nigeria is the Criminal

Code. The section that imports this common law defense into this countries law is section 318 of

the code whichprovides:

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 sudden provocation and before there is time for his Passion to cool, he is guilty of

manslaughter only.92

This section is to the effect that whenever anybody acts in any circumstance wherein provocation

can be inferred; the accused will not be liable for murder but for manslaughter as in the case of

Ekpeyong v. State93 for his liability to be reduced from murder to manslaughter as a result of

provocation. For provocation to reduce liability from murder to manslaughter the killing must be

done in the heat of passion and before there is time for the passion to cool.

Manslaughter is a voluntary act and does not need to be pleaded separately, when provocation is

successfully raised in a case of murder, it mitigates it to manslaughter. It is important to note that

92
Ibid 31-32.
93
(1993) 2 NWLR pt.229 at 513.

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no amount of provocation can justify murder and so the best the plea of provocation can do is

mitigate the offence and liability to manslaughter, i.e. reducing the culpability of the accused

from death to some years of imprisonment94.

The act of killing must be done instantaneously i.e. it must be in the heat of passion and not after

that there has been a reasonable amount of time for his passion to cool. Note that even though the

time at which people cool down varies the test is for howlong it should take for a reasonable man

to calm down. The courts have held that where there is an interval to cool down, or where a long

period of time has elapsed long enough for the temper of a reasonable man to cool down, the

plea of provocation will not avail the accused as was held in.95

Note that section 318 does not discharge or free the accused totally of his criminal liability, the

best it does is to reduce his culpability and also that the section does not define provocation but

instead states when the defense can be pleaded and the elements that have to be proven before

the defense can stand. Many courts have considered the question of whether the meaning of

killing on provocation in section 318 of the Criminal Code should be read together with section

283.96 In the case of Obaji v State97 it was held that the two sections should be read together.

A lawful act is not provocation to any person, for assault is an act which a person does in

consequence of excitement given by another person in order to induce an act and thereby to

furnish an excuse for committing an assault. At common law, the plea of provocation arises only

in cases of homicide. In Nigeria, however, provocation may be a valid defense to a charge of

assault. Section 284 of the Criminal Code provides that a person is not criminally liable for an

assault committed upon a person who gives him provocation for the assault, if he is in fact
94
The law of Homicide in Nigeria (1990) P.70.
95
Ibid P.35.
96
Ibid P.31-32.
97
Ibid P.7.

II
deprived by the provocation of the power of self-control, and acts upon it in 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.

In particular the force used must not be disproportionate to the provocation 98 but it must not be

intended and must not be such as would be likely to cause death or grievous bodily harm except

in cases of self-defense where the assaulted believes on reasonable grounds that he cannot

otherwise preserve the person defended from death or grievous harm, it is lawful for himto use

any such force to the assailant asis necessaryfor defence, even though such force may cause

death or grievous harm.

A lawful act is not provocation to any person for an assault. It is therefore no provocation for an

assault where a bailiff lawfully executes process or a police officer proceeds lawfully to effect an

arrest, note that 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 its illegality. It may be pointed out

that provocation is a complete defense to a charge of assault. But on a charge of murder it merely

reduces the offence to manslaughter.

Provocation must be directed to the accused or person with whom the accused stands in relation

with and the Act mentions that this type of relationship entails that of a conjugal, parental, filial,

or fraternal one etc. It can be safely said here that provocation need not be directed to the

accused in particular, it may avail the accused if he acted for the person who is under his care.

The provocation enunciated in section 318 of the Criminal Code must be one which will cause a

reasonable man or an ordinary person to lose his self-control and for the moment make him not a

master of his own mind as held in R.v. Duffy99 which has been followed by various Nigerian
98
R. v. Blake (1942) 8 W.A.C.A. 118.
99
Ibid.P9.

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courts. Provocation must flow from the deceased to the accused 100section 284 of the Criminal

Code provides as follows:

“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 , and is not intended , and is not such as likely, to

cause death.

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, are questions of fact”.

The above section gives some ingredients for the defense of provocation to succeed, which

includes the fact that:

1. Provocation must deprive the accused of self-control; here it must be shown that the accused

lost his self-control and not only that a reasonable man would lose his balance but that he was

actually off balance.101

2. The accused person’s actions and must have been done before there is time for his passion to

cool. In R. v. Igwe,102 it was held that the plea of provocation (if any) accused went to his house

about a mile away, brought a machete and then killed the deceased i.e. there must be no time for

100
Sunday Omeniru v. State (1965) NMLR 365.
101
Elliot and Wood case book on Criminal Law 4 th edition.
102
F.S.C. 83/1963.

II
reflection and any retaliatory act must be shown to be instantaneous to the provocation

received.103 That it is meaningless to expect a person to be reasonable when he has ceased to be a

matter of his own mind due to provocation, anger is short madness. Section 318 of the code does

not totally absolve the accused person of his guilt and the act must be done in the heat of passion.

3.4.2 DEFENSE OF PROVOCATION UNDER THE PRNAL CODE

The Penal Code is the applicable law in the Northern part of the country. Like the Criminal Code

which is applicable in the southern part of the country, the Penal code does not attempt to define

provocation. Under the penal Code, an accused can plead provocation as a defense in offenses

punishable with qisas in Islamic law, in cases of homicide section 222(1) provided thus:

Culpable homicide is not punished with death if the offender whilst deprived of the power of

self-control by grave provocation causes the death of the person who gave the provocation or

causes the death of any other person by mistake or accident.104

Section 222(4) provides:

Culpable homicide is not punishable with death if it is committed without premeditation, in a

sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having

taken undue advantage or acted in a crueler unusual manner.105

The provisions of this sections are clear, unambiguous and uncontradictory. It covers

provocation caused by the deceased and the accidental death of another person instead of the

assailant i.e. the person who gave provocation, however, it retains the requirement of

instantaneous reaction and loss of power of self-control. Section 265 106punishes assault or use of
103
Okonkwo and Naish Criminal Law.
104
Penal Code P.91.
105
Penal Code P.92.
106
P.C.

II
criminal force to a person otherwise than on grave ad sudden provocation given by that person,

shall be punished-

(a) with imprisonment for a term which may extend to one year or with affine or with both; and

(b) if grievous hurt is caused to any person by such an assault or criminal force with

imprisonment which may be extended to three years or with fine or with both.

However, section 266107 provides that whoever assaults or uses criminal force to a person on

grave and sudden provocation given by that person, shall be punished with imprisonment for a

term which may extend to three months or with fine which may extend to forty naira or with

both. However, it can be seen that in the Penal Code of the country, provocation is not a major

defense and it cannot avail a man of his guilt and all it can do is to mitigate the punishment.

Thus, what may constitute provocation would be judged form the circumstance of each case. The

provocation may be verbal or physical or both for example drawing out a dagger by the deceased

in an attempt to stab the accused may amount to provocation within the context and meaning of

section 249 (1) of the Sudan Penal Code. 108 Provocation has been recognized as being a part of

human beings i.e. human beings are prone to losing their control under extreme rage and should

they react violently. Justice demands that their rage be taken into account in inflicting

punishment.

A famous Greek philosopher, Aristotle once said, “ An act proceeding from anger are rightly

judged not to be done of malice aforethought; for it is not the man who acts in anger but he who

angered him that starts the mischief, again the matter in dispute is not whether the thing

107
P.C.
108
Per Wall, JSC in Lado vs. State (1999) NWLR (PT 619)369 at 379-380.

II
happened or not whether the thing or not but its justice for it is apparent injustice that occasions

rage”.

CHAPTER FOUR

4.1 THE BURDEN OF PROOF TO PROVOCATION

At the outset of any Criminal Proceeding the accused is presumed innocent 109 and the burden of

proof is on the prosecution to prove its case i.e. to prove all the elements of the offence, it must

be proved beyond reasonable doubt that he committed the crime110. This common law rule was

confirmed by the Privy Council in R. v. Lawrence111 and was put on a statutory basis in the 1945

Evidence Act112.

One very vital question which inevitably arises in all court trials and on which the final verdict in

any trial depends is the question of person on whom the burden of proof of the case or of a

particular issue lies. This is so because if the person on whom the burden lies fails to discharge

that burden the judgement may, on that account go against him. Furthermore, any misdirection as

to the person whoseburden it is to prove the case or a particular case or a particular case or a

particular issue may prove vital to the judgement on appeal.113

It is trite law that the burden of proof lies on the person who assets the truth of an issue in

dispute114. Thus, the burden of proof is never on the accused to establish a plea of provocation. If

the evidence discloses a possible plea of provocation, the burden of proof remains throughout on

109
C.F.R.N. section 36(5).
110
Ezekwe v. Otomewo (1957) NWLR. P.130.
111
(1933) II NLR 6; (1933) AC 699 (P.C.).
112
Section 137(1) and (2) of Cap 62, LFN,1958.
113
See, for example, R. v. Oladipo Oshunbiyi [1961] All N.L.R. 153.
114
Section 14(1) and 142 of the Evidence Act Cap 112, LFN 1990.

II
the prosecution to negate it and prove beyond reasonable doubt that the accused did not kill in

the heat of passion caused by sudden provocation.115

4.2 BURDEN OF PROOF IN CRIMINAL LIABILITY

In Nigerian Criminal Justice system, a person is presumed to intend to natural and probable

consequences of his deliberate action, “a man is a free agent and must be held responsible for his

action”116. Thus, a man who shoots his neighbor, cannot be heard to say that he had no intention

to kill or at least to cause grievous bodily harm, nor can the knowledge that death will result

when a man decapitated another person be describes as improbable 117. The essential elements in

any criminal offence are the mens rea and actus reus of the wrongful act.

Criminal law controls our actions and omissions as it cannot control our beliefs, thus if a person

breaks the law, he will not be judged by the subjective standards of his belief but by the objective

standards of the law118. It is trite law that an action does not ordinarily amount to crime unless it

can be shown that such an act was done with criminal intent or until his mind is guilty. This is

expressed in the Latin maxim actus non facit reum nisi men sit rea and it is well articulated by

lord Goddard CJ in the case of Brend v. Wood119:

“It is of utmost importance for the protection of the liberty of the subject that, a court should

always bear in mind that unless a statute clearly or by necessary implication, rules out mens rea

a constituent part of a crime, the court should not find a man guilty of an offence against the

criminal law unless he has a guilty mind”.

115
Chankall v. R. (1955) A.C. P.206.
116
Okeke v. State (2003) 2 SC 63 at 73.
117
Edemide v. The State (1996) 3 NWLR (Pt.438) 530 at 539.
118
Ibrahim K.K, “The Learned” 3rd ed. (2006). A Publication of Kwara State College of Arabic and Islamic Studies,
Ilorin, L.A.S.A. chapter 80.
119
(1946) 175 C.T. 306.

II
The burden of proof in criminal trial has been recognized even under the common law to be on

the prosecution. As far back as 1982, Lord Atkins had stated in R. v. Basil Ranger Lawrence120

“The true direction would be that the onus was always on the crown…(and) it has to be

remembered that it is an essential principle of our criminal law that a criminal charge has got to

be established by the prosecution beyond reasonable doubt…”.

This principle was reaffirmed in 1930 by the House of Lords in Wollmington v. Director of

Public Prosecution121 where Lord Sankey L.C. stated that;

“Throughout the web of the English criminal law, one golden thread is always to be seen that it

is the duty of the prosecution to prove the prisoner’s guilt subject to the defense of insanity and

any statutory exception if at the end of and on the whole case, there is reasonable doubt created

by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed

the deceased with malicious intentions, the prosecution has not made out the case and the

prisoner is entitled to an acquittal no matter what the charge is, the principle that the

prosecution must prove the guilt of the prisoner is part of the common law and no attempt to

whittle it down can be entertained”.

It is important to note that under the Nigerian criminal justice system, the law protects an

accused person in criminal liability subject to reasons justifying his actions under trial which is

knowledge within him (where there is a defense to his action). Thus, it was held in R. v. Ani

Nwokarafor &Ors.122 That where there was evidence of a fight between two persons and no

evidence one way or the other as to what actually happened leading to death of one of them, the

benefit of the doubt thus created must be given to the accused.

120
(1932) II N.L.R 6.
121
(1935) A.C. 463.
122
(1944) 10 W.A.C.A 221.

II
The burden of proof of the guilt of an accused person under the Nigerian criminal justice system

is essential in criminal cases throughout the trial. The burden is placed on the prosecution and the

standard required is a proof of the allegation beyond reasonable doubt. It should be noted

however that proof beyond reasonable doubt is attained when the evidence is so strong as to

leave only a remote probability in favor of the accused which can be dismissed with the sentence

“of course it is possible but not the least possible”, Basil Akalezi v. The Sate123. This principle

makes it incumbent upon the prosecution to prove every ingredient of the offence 124. In R. v.

SamMofor,125the trial judge found that the appellant had entered a dwelling house “for an illegal

purpose” on a charge of entering the dwelling house with intent to commit felony. It was held

that it being of the essence of the offence that there should be an intent to commit a felony, the

conviction was unwarranted in the absence of a proper finding to that effect.126

This is a principle, which has long been shuttled and recognized in line of cases. In the case of

Nigerian Air Force v. Obiosa127, the Supreme Court citing the case of Ilori v. State128 set down

the principle that;

“The basic necessity before a verdict of guilt in a criminal charge can be pronounced, if the

juriesare satisfied of the guilt of the accused beyond reasonable doubt as Lord Denning as hethen

wasstated in Miller v. Minister of Pension (1942) 2 All E.R. does not mean proof beyond the

shadow of doubt. The law would fail to protect the community if it admitted of fanciful

possibilities to deflect the course of justice, if the evidence is so strong against a man as to leave

only a remote possibility which can be dismissed with the sentence “of course” if it is possible,

123
[1993] 2 NWLR 1, at 13 S.C, relying on Miller v. Minister of Pensions.
124
Obiakor v. The State (2002) 6 SCJN P.193 at 202.
125
[1944] 10 W.A.C.A.251.
126
Cf. Inspector-General of Police v. Hilary Ewekay [1957] LLR 11.
127
(2003) 1 SC (Pt. ii) 142 at 146.
128
(1980) 8-11 SC 81, see also Aigureghi v. The State (2004) 1 (Pt. i) 65 at 86.

II
but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that

will suffice”.

It is pertinent to note that if the prosecution proved the case beyond reasonable doubt, the burden

of proving reasonable doubt is shifted on the accused 129this is because when any fact especially

within the knowledge of any person, the burden of proving the fact is upon him.130

It is constitutionally approved to an accused person, right to justice, thus an accused person is

given the benefit of the doubt in all criminal allegations due to the legal provision that “a person

is presumed innocent until proven guilty”131, the defense under the Nigerian justice system is

capable of assisting the accused person to prove his innocence and or to justify his actions.

Burden of proof is the duty placed upon a party to prove or disprove a disputed fact, or it can

define which party bears this burden. In criminal cases, the burden of proof is placed on the

prosecution, who must demonstrate that the defendant is guilty before a jury may convict him or

her. But in some jurisdictions, the defendant has the burden of establishing the existence of

certain facts that gave rise to a defense, such as the insanity plea. In civil cases, the plaintiff is

normally charged with the burden of proof, but the defendant can be required to establish certain

defenses132.

Burden of proof is also the quantum of proof by which the party with the burden of proof must

establish or refute a disputed factual issue. In criminal cases, the prosecution must prove the

defendant’s guilt beyond reasonable doubt.

129
Section 138(3) of the Evidence Act Cap E14 LFN 2001.
130
Section 142 E.A
131
Ibid P.48.
132
West’s Encyclopedia of American Law, 2nd ed, Copyright, The Gale Group INC (2008) P.24.

II
Judges provide that proof beyond reasonable doubt is “proof of such a convincing character that

a reasonable character would not hesitate to act upon it in the most important of his own affairs”.

In giving the reasonable doubt instruction, judges regularly remind jurors that a criminal

conviction imposes a variety of hardships on a defendant, including public humiliation,

incarceration, fines and occasionally the forfeiture of property. Reasonable doubt is the highest

standard of proof used in any judicial proceeding

In civil litigation the standard of proof is either proof by a “Preponderance of evidence” or proof

by clear and convincing evidence. A preponderance of evidence simply means that one side has

more evidence than the other, even by the smallest degree, clear and convincing is evidence that

establishes the truth of disputed fact by a high probability. The principle involved is as laid down

in section 137133 of the Act. It provides as follows:

(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the

party against whom the judgment of court would be given if no evidence were produced on

either side, regards being had to any presumption that may arise on the pleadings.

(2) If such a party adduces evidence which ought reasonably to satisfy a jury that the fact sought

to be proved is established, the burden lies on the party against whom judgement would be given

if no more evidence were adduced; and so on successively, until all the issues in the pleadings

have been dealt with.

Criminal trials employ a higher standard of proof because criminal defendants often face the

deprivation of life and liberty if convicted while civil defendants generally only face an order to

pay money damages if the plaintiffs prevail.

133
E.A. 2011.

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It is trite law that the burden of proof in criminal matters led with the prosecution and does not

shift, save for few exceptions, and the standard of proof is beyond reasonable doubt. Any

lingering doubt, no matter how slight, is usually resolved in favor of the accused. In civil cases,

the burden of proof lies within the party that brings the claim and proof is on the preponderance

of evidence or on the balance of probabilities.

In criminal matters, it is the state’s duty to prove the case against the accused beyond reasonable

doubt to be able to win a conviction. The state has the resources to make that happen. The state

would use the agents of the state like police detectives, forensic experts and handwriting and

fingerprint experts as the case may be, to prove the case against the accused. Though the state

has unlimited resources to put away the criminal if it could prove its case beyond reasonable

doubt. The state in some cases falls short, and the criminal gets away with crimes even as

heinous as murder.

The issue of burden of proof in criminal cases is both constitutionally and procedurally provided

for under the constitution 134 it provides that every person who is charged with a criminal offense

shall be presumed to be innocent until he is proven guilty, while section 36(11) of the

constitution states that no person who is tried for a criminal offence shall be compelled to give

evidence at the trial. In a similar vein section 138 135 provides that the proof of crime must be

beyond reasonable doubt.

4.3 EXCEPTIONS OR EXEMPTIONS TO THE BURDEN OF PROOF IN CRIMINAL

LIABILITY

134
S.36(5)
135
E.A.

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It is a settled law that in every criminal, the prosecution has a duty to establish the case against

the accused person beyond reasonable doubt. The degree of proof will not be said to have been

achieved if there are unexpected material contradictions in the evidence of prosecution witness in

court136. Once the burden placed on the prosecution is satisfied. The burden of proving

reasonable doubt is thrown upon the accused. More importantly where the accused is under

exception or exemption. Provision is made for this under the constitution, section 33(5) as

follows:

“Every person who is charged with a criminal offence shall be presumed to be innocent until he

is proved guilty:

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”.

The following cases will properly come within this proviso:

a. The burden of proof of intoxication or insanity is on the accused (section 141(3)(c); Matthew

Onakoya v. R.137). This burden the accused can discharge by evidence coming from the

prosecution or from the defense. It is the responsibility of the judge, where he sits without a jury,

to decide whether an accused person was sane or insane in the legal sense. 138 In Aiworo v.State139.

The court stated that since the provision of section 27 of the criminal code presumes every

person to be of a sound mind until the contrary is proved. It follows that the onus of establishing

insanity lies on the defense which is expected to be discharged by mere balance of probability.140

136
Babuga v. State (1996) 7 NWLR (Pt460) 279; Onubogu v. State (1974) 9 SC.
137
(1959) 4 FSC 150.
138
Attorney-General, Western Nigeria v. Phillip Uptire, 1964 N.M.L.R. 25.
139
(1987) 2 NWLR 526.
140
Onyekwe v. The State (1988)1 NWLR 565.

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b. The burden of proof of facts especially within the knowledge of the accused is on him as

provided for under section 142 of the Evidence Act. Thus, in Christopher Otti v. Inspector-

General of Police.141 It was held that, on a charge of carrying on business as a money-lender

without being in possession of a valid lender’s permit, 142 the burden of proving that he had a

license was on the accused, as being a fact peculiarly within his knowledge.

c. Where the defense of alibi is set up, it is the duty of the prosecution to investigate that defense

if it was made known to it (Obinga & Ors. v. Police 143), but the evidential burden of proof is on

the accused (Patrick Njovens & Ors. v. The State 144) bearing in mind that if on the whole court is

in doubtas to the guilt of the accused, then he will be entitled to an acquittal (Akile Gachi & Ors.

v. The State145; and Yanor & Ors. v. The State146) However, the defense must be set up as early as

possible, otherwise it may be held to be an afterthought. 147 Similarly, when the accused raises the

defense of accident, the onus is on the prosecution to negative that defense, Franklin Braidev.

The State148. Also, if the defense of an accused is that the crime was committed by someone else,

the onus is on the prosecution to disprove that defense: Clement Obiri v. The State.149

d. Generally, the burden of proving the existence of circumstances bringing the case of an

accused person within any exception or exemption from, or qualification to, the operation of the

law creating the offence with which he is charged is upon him (section 140(1)). In Simi

Johnsonv. Commissioner of Police,150 the appellant, who held a learner’s permit, and had passed
141
1956 N.R.N.L.R. 1.
142
Contra s.5(b) of the Money Lenders Ordinance (Cap .136 of the 1948 Laws of Nigeria), now s.5(a) of the Money
Lenders Act, Cap. 124.
143
1965 N.M.L.R.172
144
1973 N.N.L.R. 76.
145
1956 N.M.L.R.333.
146
1965 N.M.L.R.337; {1965] 1 All N.L.R. 193.
147
Ferdinand & Abadom v. The State [1997] 1 NWLR 1, SC.
148
[1957] 5 NWLR 141. See also Chukwu v. The State [1992] 1 NWLR 255; Daniels v. The State [1991] 8 NWLR 715.
149
[1997] 8 NWLR 352.
150
(1960) W.N.L.R. 118.

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her driving test, but had not obtained her driving license, was found driving a vehicle. On a

charge under section 7(1) of the Road Traffic Act151 it was held that the burden of proof that her

case came within the proviso to the section was on her.152

4.4 THE BURDEN OF PROVING THE DFENSE OF PROVOCATION

The burden is never on the prisoner to establish a plea of provocation. If the evidence discloses a

possible plea of provocation, the burden of proof remains throughout on the prosecution to

negative it and prove beyond reasonable doubt that the prisoner did not kill the deceased in the

heat of passion caused by sudden provocation.153

Sometimes the accused may plead accident or self-defense and he may not wish to plead

provocation as well as being an inconsistent plea it is bound to weaken, if not destroy the

alternative defense. In such cases the law does not place the accused in a fatal dilemma but

requires the judge, if he is sitting alone to consider the question of provocation, or if he is sitting

with a jury to direct the jury upon it, provided that in either case that the evidence discloses a

possible plea of provocation fit to be considered by a judge or left to a jury. 154 The law on this

point is clearly stated by Lord Goddard in Kwaku Mensah v. R.155 He said:

“But if on the whole of the evidence there arises a question whether or not

the offence might bemanslaughter only, on the ground of provocation as well

as on any other ground, the judge must put that question to the jury.”

151
Cap. 184.
152
See also Justin Ilumo & Anor. v. Commissioner of Police 1971 N.N.L.R. 152.
153
Chan kau v. R. [1955] A.C. 206; R. v. Oshunbiyi [1961] All N.L.R 453.
154
R. v. Afonja (1955) 15 W.A.C.A. 26; Apishe v. State [1971] 1 All N.L.R.50.
155
[1946] A.C. 83 at 91-92.

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This was distinctly laid down in R. v. Hopper, a case in some respects resembling the present,

more especially in that the line of defense adopted was that the killing was accidental and no

attempt had been made at the trial to rely on provocation. This ruling was expressly approved by

the House of Lords in Mancini v. D.P.P. The reason for this rule is that on an indictment for

murder it is open to a jury to find a verdict of either murder or manslaughter, but the onus is

always on the prosecution to prove that the offence amounts to murder if that verdict is sought.

A defendant who pleads provocation in defense to a charge of murder bears an evidential burden

to adduce evidence of the existence of the provocation sufficient to satisfy the trial judge that the

defense is fit to be placed before the jury. It is one of the trial judge’s important responsibilities

to direct the jury on all defenses which arise on the evidence even if the defendant himself does

not adduce any evidence of the existence of that defense or perhaps even denies the existence of

that particular defense. The decision of the House of Lords in R. v. Acott156 deals with how the

evidential burden relating to the defense of provocation might be discharged, the obligation,

placed upon the trial judge where the defendant advances a defense which is inconsistent with

the existence of provocation, and what sort of evidence must exist in order to invoke the judge’s

duty to leave the defense to the jury.157

4.5 EFFECT OF A SUCCESSFUL PLEA OF PROVOCATION

It is trite law that the defense of provocation, if successfully pleaded, can only have the effect of

reducing the punishment; from murder to manslaughter punishable with life imprisonment.

Provocation is a recognized defense which has the effect of whittling down the punishment

stipulated for the offence committed as in the case of murder, if satisfactorily established.158
156
(1997) 1 All ER 706.
157
Simon Cooper, Provocation and the Evidential Burden (Newcastle Book 2000).
158
Abdulrazaqq A. Daibu: An Appraisal of Provocation as a Defense to Criminal Liability in Nigeria. A publication of
LSS UniIllorin.

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Thus, when a person who unlawfully kills another in circumstances which but for the provision

of section 318 of the Criminal Code would constitute murder if the act which causes death is

done in the heat of passion caused by grave and sudden provocation and before there is time for

his passion to cool down, he is guilty of manslaughter.

Therefore, provocation is not regarded as a ground for complete exculpation or a complete

defense to a criminal charge, the most it can do is to mitigate the punishment, because no amount

of provocation can justify a killing.

The significance of a successful provocation plea as an extenuating ground is usually that it

reduces murder to manslaughter, despite the fact that the defendant intended to and did kill in

anger. The unique feature of provocation is that the plea may extenuate even though it is

accepted that, in killing, and the defendant was not seeking to save him or herself from death or

injury (as he or she would have been doing, in a bonafide case of duress).

The unique feature of provocation cases makes it particularly hard to understand why provoked

killings are even partially excused by reducing murder to manslaughter. One possible reason

might be the effect of anger on the defendant’s mental state and also that the act of killing was

not intended in the first place as killing on provocation is not a case of malice aforethought.

On this explanation, there is an analogy (albeit imperfect) between a plea of provocation and a

plea of plea of diminished responsibility. If the provocation extenuates liability for the same kind

of reasons as any diminished capacity defense, then the moral quality of Mr. A’s action whether

it was prospective or retrospective, just or unjust, should have no bearing on the success of the

plea. The diametrical focus will be entirely on A’s state of mental disturbance. An alternative

opposed explanation would be that what matters is that A is responding to a grave provocation.

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A’s anger is merely the settings in which one should analyzehis or her retaliation as a just

riposte, A’s retrospective retaliation will perhaps be seen as justified through a broad analogy

with other kinds of supposedly justified retaliatory killing, such as capital punishment.

4.6 CONCLUSION

It is accepted that the defense of provocation is one which only mitigates the offence of murder

to manslaughter which is punishable with life imprisonment. The burden of proof in criminal

cases is always on the prosecution save for a few exceptions where the burden of proof shifts

from the prosecution to the accused.

The burden of proof in cases of provocation is no different as it is a criminal matter and the

prosecution has the burden to prove its case beyond any reasonable doubt in order to get a

conviction of the accused.

CHAPTER FIVE

5.1 CONCLUSION

This essay attempts to examine the definition and meaning of criminal responsibility which gave

birth to the defense or plea of provocation.

The first chapter deals with the general introduction of the topic of the essay, the scope,

background and objectives of the essay, it also contains the research methodology. The second

chapter contains the literature review which talks about the materials that were used in the

writing of this essay for example the Criminal and Penal Codes and it also contains definitions of

terms which are relevant to this essay. The third chapter examines the general principles of

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criminal liability, the actus reus and the mens rea which are the two elements of crime, its

definitions and meaning under different laws, codes and jurisdictions etc. The fourth chapter

evaluated the defense under the Nigerian Criminal System. This includes an examination of the

provisions of the two codes; the Criminal and Penal Codes which are applicable to the Southern

and Northern parts of Nigeria respectively. The provisions on provocations found in the two

codes have made it crystal clear that provocation if upheld by the court, does not operate to

justify a killing as to totally exculpate an accused person. The fifth chapter, deals with the

general burden of proof in criminal and civil cases, the burden of proof in criminal cases, what

constitutes the burden of proof, the burden of proof in cases of provocation, exceptions to the

burden of proof, and the effects of a successful plea of provocation, while the last chapter

comprises of the conclusion and the recommendations on the defense.

Having examined the defense critically based on the above, it is noted that even a successful plea

of the defense of provocation can only mitigate the punishment of the offence. Although the

Nigerian law of provocation was originally based on English law, it is now clear that the

Nigerian courts have succeeded in evolving a slightly different approach. In determining whether

or not a person has been provoked, the law applied by the English courts is a purely objective

one while in Nigeria the test now applicable is the partially objective test.

3.3.0 CONCLUSION.

Defenses to criminal liability encompasses all aspects of defenses to crime in our environment.

The above discussion has shown the principles of criminal liability from the various definitions

and explanations, it has been observed that a person cannot be said to be criminally responsible

without committing a crime and without the elements of crime being present. These elements of

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crime which are the actus reus which is the physical element and the mens rea which is the

condition of the mind.

Finally, for a person to be criminally responsible under the Nigerian law, the elements of crime

must be present and also the burden of establishing a person’s liability under the law.

5.2 RECOMMENDATION

As stated above, the essence of the defense of provocation is for the purpose of mitigating

punishment both in murder and assault cases. However, the requirements placed on the defense

are so extraneous that one wonders if an accused can actually be availed by the defense. These

areas include the reasonable man’s test and the requirement that the mode of resentment must

bear a reasonable proportion to the provocation offered which is contradictory to the defense of

provocation. It is recommended that the law should be reformed in this aspect.

It is recommended that the reasonable man test should not be judged with the standard of an

ordinary man. The entire factual situation which includes the characteristics of the accused must

be considered. This is because the issue of provocation is a psychological one and must be

considered. It should be noted that the flight-or-fight reaction induced by anger (causing an

increased flow of oxygen into the bloodstream to prepare the body for fighting or fleeing) does

not dissipate as quickly as the law suggests it should, unless there is a physical outlet for the

reaction, neither does the reaction vary in direct proportion to the provocation.

The changes have something of an all or none of quality. Moreover, the courts are to note that

“the degree of response to provocation varies greatly from one individual to another. Some men

are highly vulnerable to provocation while others are highly resistant to it”.

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The criminal law revision in England, on the test of provocation goes thus: we think that the test

of provocation should be reformatted so that the accused is judged with regard to any disability,

physical or mental, from which he suffered in our view, in place of the reasonable man’s test,

there should be a requirement that provocation is sufficient, if on the fact as they appeared to the

accused, it constitutes a reasonable excuse for the loss of self-control on his part. Such test would

be more liberal than the present law. In particular it will allow any physical characteristics of the

accused to be taken into account.

The court should in determining there has been enough cooling time, take into account the

degree of provocation; for the more serious the provocation offered; the longer the time required

for his passion to cool. It is also suggested that the court should in applying the reasonable man’s

test should take into account everything including physical peculiarities of the accused such as

his age, sex, physical and mental disabilities as well as emotional condition.

The court should also note that the reasonable man is a person having the power of self-control

expected of an ordinary person of the sex and age of the accused. As long as there is no

recognized standard of measuring an act or words that could cause a reasonable man to lose his

control and accurate definition of a reasonable man, coupled with the absence of an acceptable

yardstick for measuring the proportion of provocation to retaliation there would be want of

justice in dispensing matters involving the plea of provocation.

BIBLIOGRAPHY

BOOKS

1. Aguda T.A., The law of Evidence, (4th, ed, Spectrum Books Limited, Ibadan, 1999)

P.223.

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 2. Bryan A.G., Black’s Law Dictionary, (6th, ed, Thomson West 1990).

3. Curzon L.B., Criminal Law, (8th, ed, Pitman Publishing, London, Great Britain, 1997)

P.23.

4. Duncan B, Principles of Criminal Law, (2 nd, ed, Routledge-Cavandish Publishing

Limited, Great Britain, 1996) P.18.

5. Glanville W, Criminal Law: The General Part (2 nd, ed, Stevens and Sons Limited,

London, 1961).

6. Okonkwo and Naish, Criminal Law in Nigeria, (2nd, ed, Spectrum Books Limited, 1992).

7. Richard C, Criminal Law, (3rd, ed, Sweet & Maxwell, London,1955) P.52.

8. Chris C.W., Introduction to Criminal Law in Nigeria (Mounterest University Press,

Ghana, 2016).

JOURNALS

1. Abdulrazaqq. A. Daibu: An Appraisal of provocation as a defense to Criminal Liability in

Nigeria: A publication of LSS UniIllorin.

2. Ashworth the Doctrine of Provocation. 1976, Cambridge law Journal. 292 at P.P.298-

302; Vol.35, No. 2 (NOV,1976), P.292.

3. Hart in Oxford Essays in Jurisprudence.

4. Ibrahim K.K., The Learned, A publication of Kwara State, College of Arabic and Legal

Studies, Ilorin, 3rd ed (2006) LASA Chapter.

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