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AN ANALYSIS OF PROVOCATION AS A DEFENCE TO CRIMINAL LIABILITY IN NIGERIA


Project topic for Law department

CHAPTER ONE

INTRODUCTION

  • Background to the study

      Crime is as old as man, and it would not be out of place to say that crime emanated as a product of society. Most countries in the world have developed various legal systems that have enacted Penal Code laws to contend with this variety of crimes. The Nigerian legal system provides laws to curb crime rate in the country. The Penal Laws have also made stipulations for defences to be raised by an accused person. Any accused person has a right to raise any of these defences to justify his conduct. Some of the defences include mistake, insanity, intoxication, self defence, provocation, compulsion and a host of others. This work is that law also recognizes human weakness and such weakness is recognized even under Nigerian Criminal Justice System.

     It is a common instinct that a human when suddenly provoked, can become hostile and aggressive and react violently to such acts or conducts as the case may be.Under Criminal Law, provocation is a possible defence by excuse or exculpation, alleging a sudden and temporary loss of control (a permanent loss of control is in the realm of insanity) provocative action or conduct, sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge. This is because justice demands that where a person reacts violently to an issue or to a provoking act, notice should be given or taken of his rage in unimposing punishment. Provocation thus becomes a relevant factor in the court’s assessment of an accused person’s mensrea, intention or state of mind at the time of committing the act for which he is being accused.

The famous Greek Philosopher Aristotle once said:

Acts proceeding from anger are rightly judged not to be done out of malice aforethought; for it is not the man who acts in anger but him that starts the mischief. Again, the matter in dispute is not whether the thing happened or not, but its justice, for it is apparent injustice that occasions rage [1].

    Generally, the defence of provocation is very controversial. This is because it makes it look as if the defendants receive a mild treatment because they allowed themselves to be provoked, as judging an individual to hold him responsible for the action depends on the assessment of their culpability. Another factor which makes this defence controversial is that the provoked person must have carried out the act instantaneously after the provocation occurred, otherwise known as “sudden loss of control”.

    In Nigeria, the defence of provocation as it exists may be raised by an accused person in homicide cases, hurt or assault. Under the Penal Code, [2]provocation is not a complete defence. It is not a ground for total exculpation from liability, even if one’s assault is in retaliation to the victim’s provocation. Thus, even when a plea of provocation becomes successful when raised, it can only reduce the punishment for the offence and not exonerate the accused. There is also an assertion that the Penal Code’s stand has been prompted by the legislature’s attempt to be guided by the principles of Islamic Law, which is only recognized by the defence of provocation to mitigate punishment even in assault cases.

    Under the Criminal Code, [3] the position differs. The code does not completely exculpate the accused person on a charge of murder where the defence of provocation is raised and proved. But it only mitigates it, like the Penal Code [4]. However, with respect to assault and hurt cases,the criminal code grants complete exoneration [5].

    The Nigerian position on the defence of provocation calls for urgent attention.It has left a lot to be desired when compared with other jurisdictions.It therefore seeks the attention of lawmakers so as to meet the standard and practices obtainable in other jurisdictions.

1.2       Objective of the Study

This long essay will try to analyze the defence of provocation in Nigeria. It will also cover the elements and proof of provocation so as to x-ray the relevant issues raised in litigation should the defence be invoked. By so doing, it is hoped that it may avail a defendant a complete exculpation from criminal liability in the south in cases of assault and hurt and equally mitigate his punishment or exclude him totally in homicide cases. It would also appraise provocation in other jurisdictions and see their position.It is hoped that this work would help expose the shortcomings of our laws on the defence and thus lead to a reform of these laws, so as to be in tandem with current practices around the world.

1.3       Statement of the Problem

    It is generally believed that offenders are excusable, especially when provoked by their victims. They feel provocation justifies their conduct. As a defence, provocation poses a lot of challenges to the legal profession. To the student, it poses the problem of comprehending the rather problematic principles embedded in the defence. To the accused,when,where and how to successfully raise the defence to his benefit; while to the Judge as an unbiased umpire,an undeniable enormous task of sifting through the maze of authorities(which often enough are conflicting) and apply them squarely to the facts of the case before him.It is important to mention, that provocation is indeed relevant in Nigerian Criminal Justice System.Owoade has stated with respect to this importance that:-   “For the Lawyer,it has inevitably become a common plea in criminal courts especially in murder trials; to the Criminologist, it is a legal recognition of the doctrine of victimology and to the layman, being an area of law deeply connected with human bahaviour in general” [6].

1.4       Nature and Scope of the Study

The Idea behind the defence of provocation is that it is indeed unjust and injustice to convict a defendant for any offence one can think of if death or injury is partly or wholly the fault of the deceased. Usually the law put the conduct of the victim into consideration as the case may be before deciding on what to do in the circumstance. The scope of the work will focus on the defence of provocation under the Nigeria criminal justice system. Although, reference will be made to other jurisdictions, a close attention will be paid to Nigeria.

1.5       Research Methodology

The research method used in this study is doctrinal. The work in question shall be undertaken by extensive consultation of works of professional legal authors such as texts, journals, articles, the internet and decided cases both in Nigeria and other jurisdictions.

For statutes, a close attention will be paid to the penal code, Sharia penal code, criminal code and the evidence Act where necessary.

1.6       Organizational Layout

From all ramifications and purposes, this research work in question is treated under four chapters only. Chapter one focuses on introduction, objectives, statement of the problem as well as the nature and scope of the study. The Chapter also deals with research methodology and organizational layout.

Chapter two tackles the definition of provocation and the applicable laws on provocation and a comparism between the defence of provocation under common law and Nigerian law.

Chapter three deals with circumstances of provocation, the plea of provocation, circumstances of provocation in murder cases as well as circumstances of provocation in hurt and assault cases and the effect of a successful plea of the defence of provocation. On a point of finality, chapter four forms the summary, recommendations and conclusion.


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