By M.O. Idam, Esq.
Till date, various cases of homicide were occasioned by man’s failure to keep his temper in check when provoked. Therefore, ‘Provocation’ was evolved as a defence under common law, following the presumption that humans are not angels who seldomly reacts to anger. Meanwhile, it is only virtuous for a man of honour to react proportionately with controlled violence when provoked.
As a result, the defence of provocation, when successfully established, provides a soft landing for an Accused/Defendant, only to mitigate or reduce a capital punishment to a life imprisonment in homicide cases. Acts committed by the Accused/Defendant when his mind was possessed by passion, rage, fury and anger as a result of the provocative acts of the victim are excused to an extent, under the plea of provocation. See sections 283, 284, 288 of the Criminal Code and Sections 38 and 222(1) of the Penal Code.
The Black’s Law Dictionary defines provocation as:
“such conduct or actions on the part of one person towards another as tend to arouse rage, resentment, or fury in the latter against the former.”
For an Accused/Defendant to succeed in the defence of provocation, he must prove the following:
I. That he acted in a heat of passion.
II. The act was caused by sudden provocation.
III.The act must have been committed before there was time for the passion to cool and;
IV. The mode of resentment must be proportionate to the provocation offered.
See the case of Oladipupo Vs. The State (1992) 6 SCN 233 @2391.
These four requirements must co-exist before the defence can succeed. (See Obaji v. The State (1965) All NLR 282: Stephen v. The State (1986) 5 NWLR (Pt.46) 978.
HEAT OF PASSION:
The Accused/Defendant must have acted out of sudden provocation, when emotions and passion took over his rationality. The action must have been sudden and not an afterthought or revenge.
SUDDEN PROVOCATION:
The Accused/Defendant would have lost his self-control, his mental reasoning was not engaged before the action which resulted in the death of the victim was exhibited. Where the act was committed after the provocation was reasonably expected to have subsided, the defence will not avail the Accused/Defendant. It will be interpreted as an afterthought.
THE MODE OF RESENTMENT MUST BE PROPORTIONATE TO THE PROVOCATION:
For an Accused/Defendant to succeed in his defence of provocation, he must establish that his resultant action was proportionate to the provocation. The force used must not be disproportionate to the provocation. See Eze Vs. State.(2018) LPLER 43715 (SC).
In Holmes Vs. DPP, (1946) A.C. 588, it was held that words alone cannot amount to provocation except if it is of most extreme and exceptional character.
In R Vs. Manchuk [1938] S.C.R 18, the accused suspected that his estranged wife was having extra-marital affair with another man, he barged into her room uninformed and saw her in bed with her boyfriend having an affair. In the heat of anger, he attacked both of them and unfortunately, his wife’s coitus partner didn’t survive it. At trial, his defence of provocation was sustained, the court held that although the act was still sufficiently blame-able to merit punishment—and it may be punishment of high severity—but not the extreme punishment of death. the Court posited that
“provocation… neither justifies nor excuses the act of homicide. But the law accounts the act and the violent feelings which prompted it less blameable because of the passion aroused by provocation…though still sufficiently blameable to merit punishment—and it may be punishment of a high severity—but not the extreme punishment.”
The Court of Appeal in Umar Vs. Kano State (2022) JELR 109148 (CA), held that the defence of provocation when successfully proved in a homicide case, would act to mitigate or reduce a capital punishment being the maximum penalty for the offence of homicide, to life imprisonment.
Put differently, defence of provocation does not discharge and acquit the Accused/Defendant when successfully established, it can only return a death penalty to life imprisonment.
CONCLUSION
When a defence or plea of provocation is successfully established it will not discharge and acquit the Accused/Defendant, but will only reduce his punishment from death penalty to life imprisonment.
M.O. Idam, Esq.
Pp: M.O. IDAM attorneys
[email protected]
Tel: 07058205349
