ABSTRACT
Provocation
is one of such human weaknesses that constitute defence in criminal charges.
However, justice may not be manifestly done if decisions on plea of provocation
are solely based on legal interpretations of the Criminal Code. More often than
not, the defence of provocation under the administration of Criminal Justice
System in Nigeria has become a subject of abuse by the criminals. The courts
too are not fully abreast with the scope of the word “provocation”. It
therefore brings to fore the need to take a holistic approach to checkmate any
arbitrary reliance on the concept to commit crime. In realizing this goal, both
primary and secondary sources of informations were used to illustrate and
analyze the research questions under the study. It was discovered that the
concept under the Nigerian Criminal Justice System has not taken cognizance of
the realities inherent in human psychology to some extent. The study therefore
recommends that the Courts in Nigeria should interpret the Criminal Code and the
Penal Code free from external interpolations, and should refrain from
propounding the Common Law of England. Also the legislature has to look into
the inadequacies of drafting and irregularity of sections in the Criminal Code
concerning the defence of provocation..
TABLE OF CONTENTS
CHAPTER ONE - INTRODUCTION
1.1 Background to the Study
1.2 Statement of the Problem
1.3 Aim and Objectives
1.4 Scope of Research
1.5 Justification
1.6 Research Methodology
1.7 Organizational Layout
CHAPTER TWO – LITERATURE REVIEW
2.0 Introduction
2.1 Conceptual framework
2.1.1 Concept of Provocation
2.1.2 Defence to Criminal Liability
2.2 Theoretical Framework
2.2.1 Partial Excuse
2.2.2 A Heretical View: Partial Justification
CHAPTER THREE - DOCTRINE
OF PROVOCATION: HISTORICAL DEVELOPMENT
3.1 Historical Analysis of Doctrine of
Provocation
3.2 Historical Analysis of Doctrine of
Provocation in Nigeria
CHAPTER FOUR - USE OF
PROVOCATION IN DEFENCE TO CRIMINAL LIABILITY
4.1 Introduction
4.2 A Reasonable Man Rule
4.3 Suddenness of Provocation and Reaction
under the Heat of Passion
4.4 Proportionality of Mode of Resentment to
the Provocation Offered
CHAPTER FIVE - CONCLUSION
5.1 Conclusion
5.2 Recommendations
CHAPTER ONE
INTRODUCTION
1.1 Background
to the Study
In
the early 16th century, Common law introduced the defence of provocation in an
effort to reduce the severity of the death sentence for capital offenders. This was mostly considered
as a recognition of human weakness. In most homicide cases,
the accused may use the defence of provocation in connection with murder. When an individual loses
control of their emotions and inflicts physical injury as a consequence of
being provoked, even if they do not mean to murder, the defence of provocation
may come into play.
The
defence of provocation, just like any other defences to criminal liability, originates
from common law as a result of Nigeria history being a colony of the Britain. It is based on the law’s
compassion for human weakness, as it has been recognised that human beings are
prone to losing control under extreme anger. Hence, if they react
spontaneously in a violent manner, justice demands that the cause of their
spontaneous reaction be taken into consideration when inflicting punishment. Provocation has received
legislative and judicial recognition over time and is contained in both the
Penal Code Act and the Criminal Code Act, applicable in the Northern and
Southern parts of Nigeria respectively. Although the Penal Code
merely describes its legal consequence, the Criminal Code gives a lucid and
comprehensive definition of provocation and its scope. However, unlike the
Criminal Code, the Penal Code does not recognise provocation as an absolute
defence to the crime of assault. Both Acts are ad idem on
the fact that provocation as a legal defence to criminal responsibility does
not exonerate completely; rather if successfully proved and accepted by the
court, it will merely reduce the finding of murder to manslaughter. The test of what
constitutes provocation is not settled, as what may be taken as extreme rage
varies from person to person and even from society to society. This is why it
is based on the objectivity test as, what might inflame an individual in
certain circumstances might not have such an effect on others.
1.2 Statement
of the Problem
The
defence of provocation in a murder charge has a chequered history. It developed
in English courts in the 16th and 17th centuries. During this period, the
death penalty was a mandatory punishment for anybody convicted of murder. The
defence of provocation was borne out of the consideration that it is virtuous
for a man of honour to respond with controlled violence to some forms of
offensive behaviour. Overreaction of a proportionate degree was considered a
natural human frailty and if death occurred, it was regarded as manslaughter
rather than the offence of murder. The defence of
provocation can, thus, be described as a concession to human frailty,
introduced by the common law to mitigate the strictness of the single penalty
of death for a convict in a murder charge. Before 1965, there were conflicts in
the courts as to whether recourse has to be made to the common law to determine
what provocation means while others were skeptical that provocation has been
defined in the definition of assault under Section 283 of the criminal code. Provocation can be raised
as a defence to criminal responsibility. But despite this, it is worthy of note
that it is not a complete defence such as: accident, intoxication, automatism,
self-defence and the host of other defences to criminal liability. When raised
as a defense, it is only capable of reducing murder to manslaughter. Thus, no
amount of provocation can ever justify a killing either voluntary manslaughter
or involuntary manslaughter.
1.3 Aim
and Objectives
The
main aim of this study is to investigate the legal framework of provocation as
a defence to criminal liability.
The
specific objectives are:
1.
To analyse the nature of provocation as a
defence to criminal liability.
2.
To analyse the elements of provocation as
a defence to criminal liability.
3.
To examine the limit of the defence of
provocation in criminal liability
1.4 Scope
of Research
This
study focused on the legal framework of provocation as a defence to criminal
liability. It will also cover how the courts have interpreted some salient
principles of provocation as a defence to criminal liability.
1.5 Justification
The
Nigerian Criminal Procedure System is such that when a defendant is charged
with or accused of the commission of a crime, there are certain defences which
the said defendant can raise. One of them is the defence of provocation. This
research found it necessary to find out the extent and limits of the said
defence as far as criminal liability is concerned.
More
often than not, the defence of provocation under the administration of Criminal
Justice System in Nigeria has become a subject of abuse by the criminals. The
courts too are not fully abreast with the scope of the word “provocation”. It
therefore brings to fore the need to take a holistic approach to checkmate any
arbitrary reliance on the concept to commit crime.
1.6 Research Methodology
The
research methodology adopted is doctrinal, essentially. Hence, primary and
secondary sources shall be put to use. Most significantly, statutes, law
reports and important gazette, information, hansards are to be consulted.
Textbooks, magazines, newspapers, committee reports and journals shall also
form part of the sources of the research.
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