• Adekunle Ademola Aminu Ph.D Faculty of Law, Al-Hikmah University, Ilorin, Nigeria.




By the nature of human beings, they are capable of losing power of self-control when they are enraged. Nigerian law recognizes the potential for diminished capacity due to provocation for a person who is alleged to have committed a crime. This is because justice appreciates the need to inquire into the degree of culpability of the accused in the events leading to the crime. The aim of this work is to examine the provisions of Sections 283, 284, 285 and 318 of the Criminal Code applicable in Southern Nigeria and Sections 265 and 266 of the Penal Code Law applicable in the Northern States of Nigeria and attitude of the courts when the defence is raised by the defence. The study adopted doctrinal methodology and placed reliance on statutes, decided cases, journals, textbooks and internet sources. This study found that the defence of provocation under the Nigerian law will only mitigate the punishment for the offence of murder (or culpable homicide punishable with death in the northern part of Nigeria), but will not attract an acquittal; and that the test of provocation is inadequate. The study recommends that when the defence is raised by the defendant, the court should give significant weight to the defendant’s state of life prior to the commission of the alleged offence in awarding punishment.

 Keywords:  Conviction, Crime, Mitigation, Provocation, Punishment


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The Criminal Justice Act of 1967 which included in the law that a court or jury, in determining whether a person has committed an offence, (a) shall not be bound in law to infer that he intended of foresaw a result of his actions by reason only of it being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence. This is a shift from an objective test for intent and foresight to a subjective test. See DPP v Smith (1961) AC 290; Stephen Emoga v The State (1997) 7 SCNJ 518; Nyambus Kpanta v State (1977) 1 FCA 259.

See R v Prince (1875) LR 2 CCR 154; R v Faulkner R v Adekanmi (1994) 17 NLR 99; Abeke v State (2007) 9 NWLR (Pt. 1040) 411 at 429-430.

Section 316, Criminal Code Act, Cap C 38 LFN 2004.

Section 318 CCA 2004.

AG Karibi-Whyte, Groundwork of Nigerian Criminal Law (Nigerian Law Publications Ltd. 1986) 22.

See OC Snyder, Criminal Justice- Text and Cases (Prentice-Hall 1958) 1

See H Manheim, Criminal Justice and Social Reconstruction (Oxford University Press 1946) 5.

KS Chukkol, The Law of Crimes in Nigeria, (ABU Press Ltd. 1988) 1.

BA Garner, Black’s Law Dictionary, 10th edn (Thomson Reuters 2014) 451.

AS Hornby, Oxford Advanced Learner’s Dictionary of Current English, 8th edn (Oxford University Press 2010).

AG Karibi-Whyte, Groundwork of Nigerian Criminal Law (fn 5) 23.

CO Okonkwo and ME Naish, Criminal Law in Nigeria (Sweet and Maxwell 1980) 43.

W William, Criminal Law, 2nd edn (Stevens and Son Limited 1961) 11.

DC Clarke, DA Thomas and AN Allott, ‘Crime I Definition, History, Examples, Types, Classification, & Facts’ https://www.britannica.com>topic accessed 30 December 2023.

See Section 2 CCA Cap C38 LFN 2004.

(2002) 4 NWLR (Pt. 1819) 69.

K Adegbite, Learning The Law in Nigeria, (Princeton and Associates Publishing Co. Ltd., 2015).

See Section 36 (5) of the 1999 CFRN, as amended; Section 135 (1) EA Cap E.14, 2011 LFN; Edamine v State (1996) 3 NWLR (Pt. 438) 530 at 539; Aje v State (2006) 5 QCCR 191 at 204 lines 5-17; Ubani v State (2005) QCCR 131 at 139; Brown v State (2005) 3 QCCR 50 at 75.

See Section 133 EA Cap E 14 LFN 2004; Framo Nig. Ltd v Daodu (1993) 2 NWLR (Pt. 281) 372.

See Union Bank of Nig. Ltd. v Prof. Ozigi (1994) 3 NWLR (Pt. 333) 385; Okubuke v Oyagbola (1990) 4 NWLR (Pt. 147) 723; Ike v Ugboja (1993) 6 NWLR (Pt. 301) 539; Okiri v Ifeagha (2001) FWLR (Pt. 73) 140.

Expressed in Latin maxim as: Restitutio in Integrum.

JC Smith and B Hogan, Criminal Law 3rd edn (Butterworths 1973) 30.

LB Curzon, Criminal Law (Macdonald and Evans, 1973) 23-24.

DW Elliot and C Wood, A Casebook on Criminal Law 9th edn (Sweet Maxwell 2006) 75

See R v Miller (1983) 2 AC 161; R v Akanni (1959) WRNLR 15; compare with the decisions in Gibbins v Proctor (1891) 64 LT 594 and R v Pittwood (1893) 1 QB 450 where English courts held that failure to provide maintenance to one’s family of failure to perform a contract leading to death would make the accused culpable.

(2010) 3 MJSC (Pt.11) 108 at 120.

See JF Stephen, A History of the Criminal Law of England (Macmillan 1883) 95.

See DPP v Smith (1968) 2 QB 367.

See Sudan Govt. v Abu Bakr (1956) SLJR 42.

See for example the work of J Finrus, Natural Law and Natural Right, (Oxford University Press 1980) and J Finrus, Fundamental of Ethics, (Oxford University Press 1983) that extol the teachings of the Natural Theorists to the effect that human conduct is controlled by the nature of man under the control of reason and is certainly independent of any form of intervention.

R v Duffy (1949) 1 All ER 932.

WL Clark, Handbook of Criminal Law 3rd edn (St. Paul, West Publication 1915); See also Umar v Kano State (2022) LPELR 56958 (CA); State v Da’u (2021) LCN/5156 (SC).

BA Garner, Black’s Law Dictionary 10th edn (Thomson Reuters 2004) 1421.

Section 283 CC.

Section 222 (1) PC.

See Section 265 PC

(2006) 2 WNLR (Pt. 991) 271.

G Williams, Textbook of Criminal Law 3rd edn (Sweet and Maxwell 1978).

CC Law Cap C 38 LFN, 2004.

See State v Christian Chuazor (1974) 8 CCHJ 1179.

Section 375 of CC, LFN, 2014.

Section 451 of CC LFN, 2014.

James Biruwa v State (1985) 3 NWLR (Pt. 11) 167, Ratio5, Ratio 8.

See Holmes v D.P.P. (1946) 2 All ER 124.

The Act is to the effect that words alone can amount to provocation in England since it directs the judge to take account, of all things said or done during ruling whether there has been provocation.

(1950) 5 FSC 93; Alonge v AG Western Nigeria where it was held that the statement in the English case of R v Mason (1756) Fost. 132 could not have the effect of reducing the crime from murder to manslaughter.

See Nwogu v State (1985) 3 NWLR (Pt. 13) 467; Oladiran v State (1986) 1 NWLR (Pt. 14) 75.

See Nwede v State (1986) 3 NWLR (Pt. 13) 444; Oladiran v State (supra); Nwogu v State (supra).

See James Biruwa v The State (1985) 3 NDLR 167.

See R v Green (1955) 15 WACA 73; R v Duffy (supra); R v Ibrams and Gregory (1981) 74 Cr App R 154; R v Thornton (1996) 1 WLR11174; R v Ahluwalia (1993) 96 Cr App R 123; Famakinwa v State (2012) LPELR-9748 (CA).

See James Biruwa v State (Supra); Rafiu v People of Lagos State (2021) LPELR-58368 (SC).

(1971) 1 All NLR 46.

The first crime reported in the Bible was the killing of Abel by Cain. Genesis 4:1-8. Although the facts surrounding the event are less than clear, in light of the fact that it was a familial killing, in which jealousy appears to have been a factor this may constitute crime passionel.

R v Ogodo (1961) All NLR 700; Section 300 of Indian Penal Code

But as was stated in Mehemet Ali v R. (1957) W. ALR 28 at 39 per Jackson J. ‘the final wrongful act or insult might, of itself be comparatively drifting, but when taken with what had gone before might be the last straw in a cumulative sense of incidents which finally broke down the accused’s self-control and caused him to act in the heat of passion’; See Uwaekwegghinya v State (2005) LPELR-3442 (SC).

Dummeni v R. (1995)15 WACA 75.

R v Nwanjoku (1937) 3 WACA 208; Q v Reuben Enyi Jonobil (1961) A HLR 654 at 656; Lado v State (1999) 13 NWLR (Pt. 619) 369 at 436; Bassey v State (2005) LPELR-22734 (CA).

Eze v State (2014) LPELR-23631 (CA); Harrison Owhoruke v C.O.P. (2015) LPELR-24820 (SC).

Shanawa v Sokoto Nature Authority (1959) FSC 33/59 in our opinion, a proper consideration of the whole evidence before the court, it is apparent that the appellant was deprived of the power of self-control by grace and sudden provocation as to reduce the offence to one of culpable homicide not punishable with death contrary to section 222(1) of the Penal Code.

See also Jinobu v The Queen (1961) All NLR 627 at 629; Babalola John v Zaria N.A. (1959) NRNLR 43; Wanaka v Sokoto N.A. (1956) NNLR 19.

Reasonable Person-FindLaw Dictionary of Legal Terms https://dictionaryfindlaw.com> accessed 2 January 2024.

The man on the Clapham omnibus is a hypothetical ordinary and reasonable person, used by the courts in English law where it is necessary to decide whether a party has acted as a reasonable person would. See ‘Man on the Clapham Omnibus’ https://g.co/kgs/XtPKE8u accessed 2 January 2024.

See ‘Provocation’s Reasonable Man: A Plea for Self-Control’ https://journals.sagepub.com> accessed 2 January 2024; See also Bedder v DPP (1954) 2 All ER 801; R v Nwanjoku (1963) PLR.

(1960) 5 FSSC 50; See also R v Reuben Enyi (1961) LLJR-SC.

(1942) 16 NLR 63 at 65.

See Olubu v State (1944) 17 NLR 99 at 101.

State v Mohammed (1969) 1 NMLR 269 the court took into account the fact that the dagger used by the accused, was worn by his tribe as an ornament.

See Nomad v Borno NA (1954) 21 NLR 103.

(1950) 19 WLR 84.

See also Omeniwu v State (1966) 4 NMLR 356; Ukwunneyi v State (1989) 4 NWLR (Pt. 114) 131; Shaila v State (2004) 8 NWLR (Pt. 875) 396; Idemudia v State (1999) 7 NWLR (Pt. 610) 2001.

Section 222 (1) PCL.

See Shalla v State (2007) LLJR SC; Ekpeyong v State (1993) 5 NWLR (Pt. 295) 513; John v Zaria N.A. (1959) NRNLR 43.

(1952) II NLR 6.

(1935) AC 463.

See YAa’u v State (2022)18 NWLR (Pt. 1863) 601; Ofongo v A.P.C. (2022) 9 NWLR (Pt. 1821) 543; Kwenev v State (2022) 13 NWLR (Pt. 1847) 273.

Obiakor v State (2002) 6 SCJN 193 at 202.

See Ilori v State (1980) 8-11 SC 81; Aigureghi v The State (2004) 1 (Pt. 1) 65 at 86; Nigerian AirForce v Obiosa (2003) 1 SC (Pt. 2) 145 at 146.

(1947) 2 All E.R.

Section 138 (1) of the Evidence Act Cap E.14 LFN 2011.

Section 134 and 141 E.A.

Section 36 (5) CFRN 1999.

See State v Chukwu (2022) 6 NWLR (Pt. 1825) 105.

See Mathew Onakoya v R (1957) 4 FSC 150.

See Johnson v COP (1960) WNLR 118.