The Dimensions of the Plea of Provocation in Criminal Trials:The Nigerian Experience

The Dimensions of the Plea of Provocation in Criminal Trials:The Nigerian Experience

The Dimensions of the Plea of Provocation in Criminal Trials:The Nigerian Experience 

By Barr (Mrs.) Motunrayo Oliyide, LL. B, B.L., LL.M (in view).

Department of Jurisprudence and Public Law, School of Law and Security Studies, Babcock University, Ilishan-Remo, Ogun State, Nigeria.


Dr. Adekunbi Imosemi, LL. B, B.L., LL.M, PHD.

Associate Professor, Department of Jurisprudence and Public Law, School of Law and Security Studies, Babcock University, Ilishan-Remo, Ogun State, Nigeria. 



Provocation is one of the defences that a defendant can use to either exonerate or mitigate his criminal responsibility. The question of whether the murder-related provocation is defined by the code or by reference to common law is an important one.  The law of proportionality, for example, is not included in the Nigerian Code, but it is frequently included in court decisions. Provocation as a defence to criminal culpability is thoroughly examined in this study, which focuses on Nigeria. It shows how it works in Nigeria and compares the provocation defence to that of other advanced countries like Canada, the United States, and the United Kingdom. The study reveals the nature, elements, theories, and circumstances under which the defence can absolve a person of criminal liability as defined by Nigeria’s penal and criminal codes, as well as other relevant statutes, case law, and various authors, as well as the nature, elements, theories, and circumstances under which the defence can absolve a person of criminal liability. The study recommends that any technicalities in determining who is a reasonable man should be avoided and that the Nigerian proportionality rule be tweaked rather than repealed. Furthermore, the elimination of provocation defences could convey a terrifying message to the public that people must cope with their anger and stress before acting violently, or they will be penalized the same way as those who kill in leaps and bounds.

KEYWORDS: Provocation, Murder, Manslaughter, Proportionate, Criminal Culpability



A defendant in a homicide, bodily harm, or assault case in Nigeria may raise the defence of provocation if it exists. Provocation is not an absolute defence under the Nigerian Penal Code. The Nigerian position on the defence requires immediate attention when compared to other jurisdictions. The doctrine of provocation has brought many problems to law school students, judges, and legal practitioners. The main objective of this study is to explore the dimensions of provocation as a defence in homicide trials under the criminal justice system of Nigeria.

It is natural human nature to become angry and aggressive when quickly provoked. This study analyses some of the Cases that resulted in death in Nigeria, with emphasis on provocation as means of defence. 

Statement of Problem

The researcher faced several obstacles, including a lack of time and archaic locus classicus, as well as no access to ex-convicts or the few surviving victims. The doctrine of provocation has brought many problems to law school students, judges, and legal practitioners. The provocative element is the result of an investigation of a rational person, which includes the rule of proportionality. It must also cause serious provocations to be justifiable. Nigeria’s legal system is affected by Islamic law, which does not allow accusations and provocations in its teachings. Coercion is difficult because, in the case of a murder, the victim is already dead and cannot imagine the incident. Ordinary people’s tests have been criticized for ignoring characteristics such as race and culture that affect individual performance and self-control.

 Conceptual Analysis

Criminal liability; Section 1 of the Criminal Code defines it as criminal responsibility for a crime. This is the responsibility caused by the criminal or defendant’s actions or omissions. 

A crime: Violations of legal obligations, that which should be punished under the law. Criminal acts: which are the material components of crime, must usually be accompanied by, real means of establishing criminal responsibility.

Mens rea: The state of being ready to do something, an intention.

Provocation: When provocation is typically used, it refers to ‘an action or event that upsets a person, that is, a deliberate cause of anger toward someone, causing him to react violently’, but when technically addressing the provocation is considered from the point of view of the law. Murder: The word murder is abbreviated as Homo Root, Homimsman-Caedene, Cidere to Kill, which kills a person. According to the ‘Black Law’; murder is the killing of a person.

Research Methodology

The researcher adopted both a doctrinal and analytical approach. The doctrinal approach includes legal instruments like the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and materials collected from primary sources such as court cases in Nigeria and other jurisdictions, statutes, and statutory instruments. As well as Secondary sources, such as books, journals etc.

 Theoretical Framework

 In any research, theories are important, they are an integral part of social research as it is a general principle that explains or predicts facts, observations, or events. In this research, excuse theory and proportionality theory, are the most relevant theories in this study.

through the act, representation, or omission of another person.

The Proportional Response Theory

Nigeria’s courts are obliged to interpret the Criminal Law without inserting its content, nor do they propose English common law. Reading the entire code of Section 283 and Section 318 makes it tough for people to simply accept the idea that ‘proportionality’ should be shut out. Nigerian law requires that the ‘provocation’ in a murder case be regarded as some form of resentment appropriately related to the provocation. The jury must decide whether the defendant has completely lost control of himself or actions are taken for other reasons, rather than a complete loss of self-control. The relevance of subsequent retaliation after the first fatal blow may be questioned. Because proportionality competes with other sentence purposes, the theory provides little guidance on how to hand down sentences.

Partial Excuse Theory

The heat of passion requirement is emphasized in partial excuse theories. The doctrine of provocation Joshua Dressler is the maximum outstanding proponent of a partial excuse cause for provocation.  Proponents of ‘not unusual place experience’ are noted in partial excuse theories of provocation.  Furious murderers are entitled to a discounted sentence due to the fact  the warmth of ardour reduces someone’s capacity to make decisions. 

However, the more relevant theory to this study is the Partial Excuse Theory because an offender under the influence of anger when he committed a grievous offence is taken into consideration and his punishment is mitigated. Partially justified excuses and partial justifications, according to a critic:  Husak, do not exhaust the category of mitigating factors.

Defence of Provocation under Nigerian Law 

In Queen v Obaji Ogodo, it has been argued that engaging in a fight and wounding an already wounded unarmed man who is struggling to disarm his original attacker is an act of provocation. Capturing a man’s private parts, as a provocative act of aggression, is not sufficient provocation to reduce murder to involuntary manslaughter. The solution in every case should depend upon the precise facts, which include the connection among the events, and an attack of this type dedicated via way of means of a woman with the rationale to save her husband from exercising his marriage rights could be more provocative as if the parties were not the husband and wife or the reason for that.

 In the case of Chinedu Osuji vs State, the act of the deceased throwing the defendant on the floor and of the Appellant killing the deceased with a broken bottle minutes later does not make the defence of provocation available to him. There is no unanimity, on whether the wife’s refusal to cook food for her husband is an illegal act that may in the Eseno v Queen case, the defendant/applicant’s late wife refused to prepare food for her husband and the husband killed her.

The offences to which provocation is a defence under Nigerian Law include the following:


The common crime of provocation is murder. Section 318 of the Criminal code and Section 221 of the Penal code provide partial protection against incitement to murder and manslaughter, both of which are punishable by the death penalty If the defendant intends to provide this protection. Killing or causing serious injury Section 222, paragraph 4 of the Penal code stipulates that death caused by illegal activities is not a criminal offence, death caused inadvertently in the passion of sudden fighting, and the perpetrator did not take advantage of death or acted brutally or abnormally; it does not matter who initiates the attack first-the defendant or the dead. The deceased does not have to be deliberate, there must be a sudden fight, and the perpetrator must be tortured, violent or unaccustomed.

The section has been applied in Musa Arandum v. Bauchi Native Authority in a sudden quarrel between the appellant and one Ali and without premeditation, the appellant aimed a blow at Ali with a knife with which he was cleaning a rabbit, but as Inuwa was trying to separate them, he mistakenly hit Inuwa. As a result of the blow, Inuwa died. Reed, AG. SPJ held that section 222(4) of the Penal code applied to reduce culpable homicide punishable with death to one not punishable with death.

As the deceased got up the appellant struck him with the knife and seized his matchet.

Where the defendant had struck the deceased, who was unarmed, six times on the head, he had acted cruelly or unusually. In R v Egbe Gboko Alo the defendant struck the first blow at the deceased who challenged him to a fight. In the fight that ensued, the deceased died, the West African Court of Appeal held that: ‘the challenge to a fight provided the necessary provocation’ ‘Was the deceased killed in the heat of passion caused by sudden provocation?’ The criminal code does not contain an equivalent provision of section 222(4) of the Penal code.


The range of provocations in our law can easily be extended to include Assault. It is precise because provocation is defensive in the attack stipulated in the Criminal Code, so it can be regarded as complete protection. Section 284 of the Criminal Code provides adequate protection measures to avoid personal injury. Like Islamic law, the Penal Code does not allow provocation on charges of assault.  However, if this causes serious harm, the defendant will be sentenced to three years in prison and a fine.


The definition of provocation in Section 283 of the Criminal Law stipulates that provocation can be interpreted as ‘aggression is an act that constitutes a crime.’ A provocation is a special form of defence.However, the conviction rate for murder was reduced to that of manslaughter

Defamation Offences and Malicious Damage 

A provoked person can utter some defamatory words in the heat of passion before his passion cools. It is sound reasoning to allow provocation defence to a defamation offence. It is also, possible for a person who is provoked to maliciously damage the property of the person who offers the provocation. If upheld, the defence should only be to mitigate punishment.

The burden of proof

The prosecution bears the burden of proof at all times to establish beyond a reasonable doubt that the defendant did not murder the victim in a fit of rage. The Court of Appeal in Saliu Muhammed v The State judgment addresses the burden of proof in defending the provocation.

Applicability of the Defence of Provocation in Nigeria

Provocation is a ground for reducing murder to manslaughter in Nigerian criminal law, and this is its most important function. According to the Penal Code, the provocation does not absolve a person completely of criminal responsibility for his actions. The penal code’s stance may have been prompted by legislators’ attempts to be guided by Islamic law principles, which rarely allow for the defence of provocation even in murder cases, Sadiku v. The State held that; ‘even if the defence does not raise provocation, it is incumbent where there is evidence indicating such a defence’.

The Implications of a Successful Provocation Attempt

It is not unusual to place a regulation that, if efficaciously pleaded, the protection of provocation can best have the impact of lowering the punishment; from homicide to manslaughter diagnosed protection that has the impact of whittling down the punishment stipulated for the offence committed, as with inside the case of homicide, if satisfactorily established, and the loss of life takes place earlier than his passion has cooled down. A hit provocation plea as a nerve-racking element commonly reduces homicide to manslaughter, even supposing the defendant was supposed to and did kill inside the first location out of rage. Because of the atypical nature of provocation cases, it is far especially tough to realize why provoked killings are even in part justified through lowering homicide to manslaughter.

Provocation as a defence in Nigeria and any other Jurisdiction  

Nigeria’s legal system, like that of many other developing countries, is based on the United Nations. In the United Kingdom, the rule of law in general, and criminal law, in particular, are both important. This study looks at one aspect of the law, homicide, and how it relates to other aspects of the law. Norms are in high demand in contemporary Nigerian society. For this research, the researcher looked at the substantive law of homicide as it appears in the United States Code, numerous published and unpublished publications, as well as the Criminal Code of Southern Nigeria, can be found.

A great number of decided cases show that it is essential that the assault, wounding, and so on should have been inflicted immediately upon the provocation being for that appears to be the only way of satisfying the requirement of suddenness and the law abhorring revenge. There is no mathematical precision in determining the time limit for passion to cool. Judicial attitude in setting the time limit has not changed between the old and the new cases. In Chutuwa v. Queen, it was held that section 318 of the criminal code would not exonerate the appellant since his suspicion about his wife’s adultery had arisen the night before the deceased was killed and so it was not sudden. 

In R. v Atta the defendant met his wife and the deceased brother having sexual intercourse. He called her to him and they had words together and in the anger that ensued during the conversation, he killed her there and then. He proceeded to his brother’s house called him out, and after a short discussion killed him. It was held that he was not in such a passion as to make him not master of his mind. In Jonas Effia v State, the Supreme Court held that the provocation defence failed. Uwaifo, J.S.C stated that passion had cooled down. It was held that if the alleged slapping of the appellant by the cow horn was sufficient provocation, the fact that it was later in the day, that he shot the deceased with a gun destroyed the excuse of sudden provocation.


Court Decisions in Cases Where the Question of Whether Words Are Strong

While it is now widely understood in Nigeria that words alone might constitute provocation, not every statement or word made by the deceased is sufficient to reduce murder to manslaughter. Thus, in Nweke Usman Kaza v. the State, It has been argued that the appellant and other defendants were provoked by the deceased’s blasphemy, or insulting words, as the rumour spread throughout the neighbourhood, and that the appellant’s lack of sufficient cooling-off time in the circumstances, made the defence not available to them.

The Provocative Acts

There are certain types of acts or behavior that are sufficient to constitute a provocation.  In particular, when determining such an act or conduct, the courts did not apply the provisions of the Criminal Code and the Penal Code to reach their decisions.  Such an approach is permitted in the jurisdiction in which the Criminal Code is applicable because provocation is not defined in this law and there is no legal justification for applying the Criminal Code.

Provocation Due to A Spouse’s Adulterous Act.

The most common areas in which problems of provocation are regularly identified are where a woman and a lover or fiancé have committed adultery by having sex with another man. While a mere admission of adultery would not readily constitute sufficient provocation to reduce murder to manslaughter, a charge that would otherwise be murder. Finding adultery is provocation as it is an illegal act. When the defendant at Green v Queen found that the deceased had sex with his wife, he went home and looked for a cutlass. He returned to the scene and cut the deceased to death. The West African Court of Appeals ruled that although the defendant could have been provoked, his passion was evoked over time. However, the law has traditionally been kind to the husband who discovers his wife is committing adultery and killing her or her lover, or both. Therefore, the law’s indulgence has been limited to situations where there was a strict legal marital bond between the perpetrator and the woman he killed. 

In the case of Chacha S / O Wamburu v Reginam in East Africa, the court ruled that the woman and adulterer don’t need to be captured during the actual time of sexual intercourse, but they are together in circumstances where one can safely and correctly infer the immediate recent sexual intercourse, one can say that they are committing adultery according to the rule. In this context, Professor Chukkol observes: When it is said that the finding that his wife is committing adultery is sufficient provocation to reduce a murder conviction to involuntary manslaughter, it does not mean that, his wife and the male intruder are in the actual act of intercourse.

In the case of Matthew Ahungur v State, the Nigerian Court of Appeals ruled that provocation in litigation does not constitute a defence, as follows: If a husband is already aware of his wife’s infidelity and sexual immorality towards another man, and she has forsaken him, apparently exercising her right to whom to associate with, which is a matter of conscience and principle, and he kills that another man afterwards ‘Provocation as a defence is not available.

Both English and Nigerian law hold that the establishment of a mistress in adultery and the confession of adultery by a mistress do not warrant the conviction of involuntary manslaughter. But should he kill her himself, this is considered to be premeditated murder, as the defence of provocation is not a recognized defence in Islamic law.

Bewitchment, Fear of bewitchment, and Allegations of bewitchment as a provocation

The term witchcraft is used to cover all forms of belief in spellbinding, the fascination with evil, and bewitching. An event brought about by witchcraft may not be as tangible as a slap on the face. Can situations springing from the belief in and the practice of witchcraft be brought within the ambit of provocation? In Josiah v. State. The Supreme Court of Nigeria also reiterated that the court must very slowly accept mild objections, which are often based on a person’s belief that they have no objective criteria for judgment. It aligns with the basic tenents of justice if the defence of provocation is recognized in cases of witchcraft after satisfying the requirements of the Nigerian code.

Insults as Provocation:

Section 283 of the Criminal Code refers to “insults” as being capable of provocation. Islamic law did not allow for private persons to assassinate the Holy Prophet Mohammed (SAW). The criminal offence has to be proven in a court of law. Individuals being allowed to take the law into their own hands would set a terrible precedent, just like the recent case of Deborah in Sokoto State..

 In Emeka Oko v. the State, we got the idea that when he was criticized by the victim twice, for not greeting him, he became enraged and killed the victim. This was far from the case, according to the prosecution evidence. It has been argued that the provocation would not benefit the defendant because his type of resentment was disproportionate to the provocation.

Defence of Provocation In Nigeria

Nigeria’s proportionality rule should be changed rather than abolished. Minor provocations, which would have violated public order, could be mitigated. Adultery at a crime scene should not be recognized by the law only based on suspicion. The law should aim to manage human behavior by requiring a high level of self-control. Adenike Ayedun was a victim in the family murder case. Her husband became enraged and drove his car into her, murdering her, according to eyewitness testimonies. The defendant, on the other hand, maintained that it was an accident. This study looks at the murder of the wife in this case and also looks into Nigeria’s perspective on provocation.

Comparative Analysis of The Defence of Provocation in Other African Jurisdictions 

South Africa

Provocation has moved from the margins of South African law to a fully established defence applicable to persons who kill when provoked in the last 20 years. The defence, on the other hand, is steeped in debate and poor judgment. Not only has the specific nature of the defence remained unclear, but the lack of clarity has been worsened by South African courts’ muddled decisions. The real issue appears to be a theoretical misunderstanding of what “loss of self-control” means. The courts have occasionally failed to discern between incapacity and lessened responsibility. As a result, to acquire clarification on this “grey” region of the law generated by these difficulties.

To gain direction on the concerns outlined, South African law must contact more authorized sources. English law is one of the sources that has been consulted. However, English law approaches the defence of provocation in a unique way. Provocation as a defence does not result in an acquittal, but rather in the charge being reduced to manslaughter. The English legislation on provocation, on the other hand, has several flaws. 

Finally, the difficulty with the proportionality requirement is that it renders the provocation defence reliant on a judge’s evaluation of the defendant’s behaviour after he or she has lost control, rather than on the defendant giving in to passion and losing control in the first place. Because of the concerns outlined in both South African and English law regarding the defence of provocation, it is evident that the courts in both jurisdictions will have to deal with the issue, to ensure clarity and legal certainty.

Comparison Between the Defence of Provocation under Common Law and Nigeria

Only a charge of murder to lower the offence to manslaughter is eligible for the provocation defence under English law. Provocation is a mitigating factor rather than a complete defence, and it cannot be used to defend a lesser accusation such as assault. A person charged with any offence including assault, on the other hand, can plead the defence under section 284 of the Criminal Code. As a result, in Nigeria, provocation can be used as a complete defence to assault. Although the section only refers to assault, it is claimed that the provocation defence is viable on a charge of any offence in which assault is a component, providing the prerequisites of this section are met. When the force used is neither intended nor expected to cause death or serious harm, but it happens, the defendant may be exempt from culpability under either Section 24 or Section 248 of the Criminal Code. To this degree, provocation may be a complete defence to a charge of manslaughter involving assault.

The circumstances in State v. Christian Chuazor was that the deceased threw a stick at the defendant during a fight that he had initiated, and the defendant afterward hurled it back at him. The deceased’s right eye was struck by the stick, which punctured his skull and caused a brain abscess, from which he died. The court found that the defendant did not use the cane negligently or recklessly, and as a result had a defence under section 285 of the criminal code, which states that ‘it is lawful to use force to prevent the recurrence of an act of provocation or insult if the force is not intended to cause serious injury or injury’. It should be noted that this case could have been handled better under section 24 of the Criminal Code. Section 384 of the criminal code may, however, apply to acquit the defendant of a case in cases where section 24 does not apply, such as when a court chooses to apply ‘eggshell law’.

What is also noted is that there is no sound basis for allowing resentment to become a defence against one another and not another crime such as degrading and damaging property. If a person is offended under the circumstances described under the code and as a result of the anger talking about the heat of the passion before it cools down, something offensive about a person who is upset should be able to rely on that resentment, just as they would have done under section 284. Under the penal code, any person who beats or commits a criminal offence against any other person is liable to one-year imprisonment and a fine, if there are no injuries as a result of the attack or illegal force, but there is significant damage, that person is responsible. a three-year prison sentence and a fine. The position under the penal code is the same as that under English law, except that under the most recent system, the level of remit a person is entitled to receive is determined by a good judge’s judgment instead of the law. Words alone could not have been considered offensive in England before the 1957 Child Murder Act, but this was not the case in Nigeria, where fines law defines resentment as any “wrong” act or “insult.”

Although it was stated in R. v. Mayer Nungu that the mere use of words could hardly amount to manslaughter, more subsequent Supreme Court rulings have shown beyond a shadow of a doubt that inflammatory words alone can help a defendant in proper contexts and circumstances. One of the strictest rules in common law was the reasonable man test. The emphasis in common law is normally on the reasonable man test, but in Nigeria, a socio-cultural background test has been incorporated into determining a reasonable man. Because a basic peasant’s passion may be more easily aroused than that of an educated, civilized person, the standard applied is usually that of a reasonable man in the defendant’s line and culture, rather than the common law’s blanket approach. The doctrine of the reasonable man mandates that ‘the defendant’s mode of resentment bears a reasonable proportion to the kind of provocation offered to him’, regardless of the shape it takes in any given scenario. As a result, a retaliatory response that goes much beyond the provocation presented is likely to be judged as primitive and unreasonable, and the defendant may lose the advantage of the provocation defence.

    The appellant in James Biruwa v. The State was charged with culpable homicide. He was accused of shooting the victim in the neck with an arrow. He said the deceased seduced his wife and mocked him with cowardice by the deceased’s second wife. The trial judge dismissed his provocation defence. On appeal, the court, by a majority judgment, dismissed the case and upheld the trial judge’s conviction and sentence. This is an example of a Nigerian case where the common law principles and Nigerian law appear to agree that the form of resentment should not be greater than the provocation supplied.

 Provocation in other Jurisdictions

To properly study the theory of provocation under Nigerian criminal law and how it might enhance some modifications in Nigerian criminal law, an assessment of the doctrine in other countries is required. The defence of provocation will be reviewed in Canada, America, England, and other jurisdictions, with an emphasis on how it is implemented and what changes should be made to satisfy society’s ever-changing requirements.



Section 232 of the Criminal Code, dubbed ‘reduced homicide in murder’, governs the protection of offenders in Canada. According to this section, a culpable homicide that could be regarded as murder could be reduced to manslaughter if the culprit acted out of rage. When illegal actions or insults are used to take away a person’s ability to control his emotions, this is referred to as anger. Culpable homicide that would otherwise be murder is now necessarily manslaughter because it was perpetrated by a person who was being arrested illegally. Canadian francophones, on the other hand, do not even have that bare minimum of clarity (if ‘manslaughter’ brings any clarity at all).

Not only is Canada’s provocation law a mess that needs to be updated since the death penalty was abolished, but it also misleads its citizens! Nothing could be further from the truth than referring to an intentional homicide committed under duress as an involuntary homicide. Hence, provocation in Canada is an issue to be considered during sentencing. Unlike in Nigeria, the death penalty is still in existence, hence the defence of provocation is still relevant to mitigate the effect of the death penalty in culpable homicide.


Each of the fifty states in the United States has its own set of provocation laws. As a result, in the United States, there is an opportunity to develop legal standards for both traditional provocation rules and the MPC’s Extreme Emotional Disturbance (EED) provision at the same time. As a result, specific practice indicates that each state has its own set of laws governing the defence of provocation, in addition to a set of basic principles that control the defence. Based on the existence of conventional provocation rules in all states Forrell makes the following observations:

That there is an opportunity to develop legal standards for both traditional provocation rules and the MPC’s Extreme Emotional Disturbance provision at the same time. He argues that each state has its own set of laws governing the defence of provocation, in addition to a set of basic principles that control the defence. Forrell argues that the MPC is the requirement that the jury finds that the murderer acted, under the influence of extreme mental or emotional stress, for which a reasonable explanation or excuse exists. The courts of the United States have had to interpret the statutory provisions governing the defence of provocation. . In Mullaney v Wilbur , the defendant was convicted of murder in a Maine State court despite his defence of provocation. On the rules of procedure, once the defendants raised the defence of provocation, the learned justices decided what practice should be followed in Re Worship . Once evidence tending to show provocation was introduced, the burden of proving the absence of provocation beyond a reasonable doubt fell on the state, not the defendant. Nigeria unlike America does not practice a jury system, in a country with a jury system, the jury decides on matters about the defence. Because it is a traditional jury question, in which the jury is asked to determine what an ordinary person would do in the same situation. Criminal matters involving provocation go as far as the Supreme court of Nigeria. However, criminal cases in America are mostly abandoned in the Province, which leads to little or no guidance as per provocation as a defence to criminal liability.

England & Wales

Delvin J. explained the common law rule controlling the defence in R. v. Duffy Supra. The Homicide Act of 1957, however, changed the common law rule. Section 3 in particular contains useful information. Provocation has been described as a ‘failure of proof defence and an offence modification’. It is acknowledged that a failure-of-proof defence negates the mental or fault element of murder while leaving the mental aspect of the lesser charge unaffected. Provocation, on the other hand, is portrayed as a defence capable of lessening guilt without modifying the mens rea of murder under the formulation ‘offence modifications’. According to Martin Wasik, ‘the latter approach to provocation better embodies the current understanding of the defence in English law’.

The pleading provocation assumes that the prosecution has presented enough evidence for the jury to find the defendant guilty of murder. As a result, when argued as a partial defence to murder, provocation is a classic example of formal mitigation.

It is observed that the Homicide Act of 1957 does not create or modify the common law defence; rather, it assumes its existence and amends it. The English Courts have taken to giving terms their ordinary and natural meaning, free of the technical limits of the common law, while interpreting section 3 of the Homicide Act. This should be emulated in Nigeria, by forgetting about the possible technicalities while addressing provocation issues in our courts.

The Legal Framework 

Provocation laws are put in place with the aim of mitigating the effect of Homicide, and all that comes with it, such as assaults, malicious damages, etc.  The functions of these laws are to prevent any sort of provocation in Nigeria, to protect those who kill without intention and to place a check on human flaws. Some of these laws are:

Criminal Code

In Nigerian criminal law, the defence of provocation is a well-known one . Sections 283, 284, and 315 of the criminal code include the relevant provisions. In contrast to Common Law, Nigerian Criminal Law recognises the defence of provocation in two unique situations . First, as a complete defence against an assault accusation, and then as a partial defence against a charge of murder . According to Section 318 of the Criminal Code, if a person kills someone in the heat of passion, as a result of grave and rapid provocation, before his passion has cooled, he is guilty of manslaughter rather than murder . The section does not attempt to define provocation and the courts have treated it as imputing the common law of England into Nigeria.  In Obaji v State , the Supreme Court considered the question of whether the meaning of provocation in section 318 is to be found in section 283 or the common law but held that both sections should be read together .

Penal Code

In sections 222, 265, and 266 of the Penal Code, the defence of provocation was provided.

It was found that it was not enough for the applicant to kill the deceased by force. Here, the complainant has been charged with the murder of his wife. The honourable Justice’s statement is clear and clearer than the earlier decision of R v. Akpakpan, in which the Supreme Court ruled that a single statement could be chaotic, whereas simply admitting adultery would not be enough. There will be an extension of cases where words may be offensive when the courts translate the word ‘blasphemy’ in Section 283 of the Criminal Code to meet, for example, the requirements in that section or Section 318 of the Criminal Code.

Constitution of The Federal Republic of Nigeria (CFRN)

Although the law states that words alone can constitute a provocation depending on the actual words used and their effect or what they mean to a reasonable person of a background similar to that of the complainant  and where the offending exact words are not known or disclosed and not even having been heard from the mouth of the deceased, it cannot be ascertained whether the defence of the provocation is open or available to the complainant .

Consequently, the end of life is universally accepted as the Creator’s purpose. But if the death was unintentional or accidental, the deceased’s family is entitled to compensation, and it is determined that the murderer will release one believing slave. Murder Charges were dropped in this case. It means that murder is illegal where it is not authorised by law. Everyone has the right to life, liberty, and personal security’, according to Section 33 .


Nigerian law is so onerous that we doubt if a defendant can genuinely have the defence of provocation. Adultery should be recognized as flagrant delicto by the law. Law should try to govern human behaviour and demand a high degree of self-control. Provocation as a partial defence to murder should be preserved, subject to certain situations. Excessive intoxication caused by the abusive use of prescriptive drugs like Tramadol, codeine, and hard drugs like cocaine, Indian hemp etc., mental illness, and temperament should be considered.

In Nigeria’s criminal justice system, provocation can still be used as a defence against homicide, assault, defamation, or malicious property damage. We believe that the slow-building effect of prolonged and severe abuse should be considered for defence of provocation in cases of murder.


Provocation functions as a partial defence on the assumption that provocative behaviour is capable of instilling in an ordinary person such a level of psychological pressure, in the form of angry passion, that such a person is deprived of the ability to exercise rational control over their actions. The defence of those guilty of murder is referred to as ‘freedom from provocation’. This safeguard, if enacted, will turn murder into manslaughter. Some critics believe that the law should take the stance that individuals who kill out of rage should go to greater efforts to cope with their emotions.





Abdulrazag A, ‘A critical appraisal of the extent and limit of the defence of provocation in murder change in Nigeria’, (A Publication of the LSS Umalorins,2010) p.59.

 Agbo, Festus. ‘When May the Defence of Provocation Avail a Defendant in Homicide? Owhoruke V COP Reviewed’ (2021). Owhoruke V COP Reviewed. (September 10, 2021).

  Agbo, Festus. ‘When May the Defence of Provocation Avail a Defendant in Homicide?: Owhoruke V COP Reviewed.’ (2021) Owhoruke V COP Reviewed. (September 10, 2021).  

Áine Clancy et al., Homicide: murder and involuntary manslaughter (lrc 87 – 2008)

Ajewole v State (2018) LPELR-46035(CA).

Akande, Rabiat, ‘Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903–58’ (2020) 38(2) Law and History Review pp. 459-493.

Awhefeada U. V, Akpodovhan I, ‘Corporate Manslaughter: Identifying Criminal Liability under Nigerian Law’, (2020) 98 Journal of Law, Policy and Globalisation, Pp. 81

 Bergelson, Vera,’Victims and perpetrators: An argument for comparative liability in criminal law’ (2005) 8(2). Buffalo Criminal Law Review pp 385-487.

  Berman, Mitchell N., and Ian P. Farrell, ‘Provocation manslaughter as partial justification and partial excuse’ (2010) 52 Wm. & Mary L. Rev, p 1027.

 Bettinson, Vanessa. ‘Aligning partial defences to murder with the offence of coercive or controlling behaviour’. (2019) 83(1) The Journal of Criminal Law pp 71-86.

  Block, Brian, and John Hostettler. Famous Cases: Nine Trials that Changed the Law. (Waterside Press, 2002).

  1. Forrell, Gender, Social values and provocation values in Australia, Canada and United States of America’. (2009) 14(1), Journal of Gender, Social Policy and the Law, pp 43-44.

  Chapman, Frances E., and Georgette M. Lemieux. ‘The Troubled History of the Defence of Duress and Excluded Offences: Could the Reasoned Use of Mitigation on Sentencing Prevent Duress from (Further) Becoming Archaic, Gendered, and Completely Inaccessible?’, (2021) Man. LJ 44 p 33.

  Claydon, Lisa. ‘Coercion and Control and Excusing Murder? (2021), Neurolaw. Palgrave Macmillan, Cham, pp 77-99.

Constitution of the Federal Republic of Nigeria, 1999 ( As Amended)

Daibu, Abdulrazaq Adelodun, ‘A comparative analysis of the defence of provocation under statutory and Islamic law’ (2021) 26(2) Coventry Law Journal.

 Dan M. Kahan and Martha C. Nussbaum, ‘Two Conceptions of Emotion in Criminal Law’ (1999), Columbia Law Review, pp. 269-374

 Donovan, Dolores A., and Stephanie M. Wildman, ‘Is the Reasonable Man Obsolete: A Critical Perspective on Self-Defense and Provocation’. (1980) 14, Loy. LAL Rev, p 435.

 Dr. Yahaya Abubakar Muhammad, ‘The Future of the Defence of Provocation in Nigerian Criminal

Dressler, Joshua, ‘Why Keep the Provocation Defense: Some Reflections on a Difficult Subject’ (2002), Minnesota Law Review, p 1712.  

Dressler, Joshua. ‘Provocation: Partial justification or partial excuse’.  (1988) 51, Mod. L. Rev, p 467.

Elton G.R, ‘Introduction: Crime and the historian’- Crime in England (Routledge 2020) Pp.1550–1800,  

 Emad H Atiq and Erin L Miller – ‘The limits of law in the evaluation of mitigating evidence’, (2018-2019) 45, Am. J. Crim. L., p 167

 Eric Alan Johnson,’ When Provocation Is No Excuse: Making Gun, Owners Bear the Risks of Carrying in Public’, (2021) 69 (4) Buffalo Law Review

 Filani, Alfred Oluropo, ‘An Examination of the Right of Self Defence and Others in Nigeria.’ (2014) 28 JL Pol’y & Globalization p. 164.

 Follingstad, Diane R. ‘Rethinking current approaches to psychological abuse: Conceptual and methodological issues’. (2007) 12(4), Aggression and Violent Behavior, pp 439-458.

 Grans, Lisa. ‘The Istanbul convention and the positive obligation to prevent violence’. (2018) 18(1) Human Rights Law Review, pp 133-155.

Green v. The Queen, 1997 C.L.R.191 334 (1997).

 Greenawalt, Kent. ‘The perplexing borders of justification and excuse’. (1984) 84(8), Columbia Law Review pp 1897-1927.

Guglielmo S and Malle B.F, ‘Asymmetric morality: Blame is more differentiated and more extreme than praise’ (2019) PloS one journals.

Guillaume, Gilbert, ‘The use of precedent by international judges and arbitrators’. (2011) 2(1) Journal of International Dispute Settlement pp 5-23.

  Hemming, Andrew, ‘Provocation: a totally flawed defence that has no place in Australian criminal law irrespective of sentencing regime’.(2010) 14 UW Sydney L. Rev. p 1.

 Hoebel, E. Adamson. ‘Three studies in African law’ (1961), Stanford Law Review, pp. 418-442.> 

Husak, Douglas, ‘Wrongs, Crimes, and Criminalization’ (2019) 13(3)  Criminal Law and Philosophy pp. 393-407. 

 Idem UJ., ‘Criminal Responsibility and the Defence of Insanity, Insane Delusion and Irresistible Impulse in Nigeria’.  (2018) 4(2), Donnish Journal of Law and Conflict Resolution, pp 11-20.

Jejelola, Oj, ‘An Evaluation Of The Defence Of Provocation Under The Nigerian Criminal Justice System’ (2017) 2, African Journal Of Criminal Law And Jurisprudence p 493.

 Johnston, E. Lea, and Vincent Leahey, ‘Psychosis, Heat of Passion, and Diminished Responsibility’. The heat of Passion, and Diminished Responsibility (September 14, 2021) p 63. 

Joshua Dressler, ‘Provocation: Partial Justification or Partial Excuse?’(1988) 51(4) The Modern Law Review pp. 467-480

Kagan J, Snidman N, Arcus D,and Reznick JS. Galen’s prophecy: Temperament in human nature. ( Routledge, 2018).

Koga, K., 2018. The concept of ‘hedging’ revisited: the case of Japan’s foreign policy strategy in East Asia’s power shift. (2018) 20 (4), International Studies Review, pp.633-660.

 Kramers-Olen A. ‘The Defence of Sane Automatism and Non-pathological Criminal Incapacity in South Africa: An Epistemological Intersection Between Psychology and Law’. (2019) 49 (2), South African Journal of Psychology, pp 188-198.  

Law’. (2017) Journal of Law, Policy and Globalization, pp 110-121. 

Lee, Cynthia. ‘Firearms and Initial Aggressors’. (2022).


Lee, Cynthia, ‘The trans panic defense revisited’. (2020) 57 Am. Crim. L. Rev. p 1411.

Lyon, Helen M., Sue Kaney, and Richard P. Bentall. ‘The defensive function of persecutory delusions: Evidence from attribution tasks’. (1994) 164(5), The British Journal of Psychiatry, pp 637-646.

MacIntyre, Michael R., et al. ‘Voluntary intoxication, homicide, and mens rea: Past, present, and future’. (2021) 39(2) Behavioral sciences & the law, pp 150-169.

 Maculan E, ‘Rationale and Purposes of Criminal Law and Punishment’ (2020) 40(i), Oxford Journal of Legal Studies Pp.132-157

 McCullough, Michael. Beyond revenge: The evolution of the forgiveness instinct. (John Wiley & Sons, 2008).

Mostafa H.T and Boregowda N.S, ‘Capital Structure’, (2014), Research Journal of Recent Sciences, Pp.7

No. A-5556-12T4 (N.J. Super. Ct. App. Div. May 27, 2015).

  O’Regan, RS — ‘Provocation as a Defence in Queensland in..’, (1990-1991) 16 (1) UQLJ 11 7.

 Paul Valent, Heart of Violence: Why People Harm Each Other (published by Arden the International general books imprint of Austalian Publishing Ltd, 2020) chap. 19

Pichon, Marjorie, et al, ‘A mixed-methods systematic review: Infidelity, romantic jealousy and intimate partner violence against women’. (2020)17(16) International Journalof environmental research and public health pp. 5682.

Post, Robert C. ‘The social foundations of privacy: Community and self in the common law tort.’ (1989) 77, Calif. L. Rev, p 957.

 Provocation (legal) – Wikipedia › wiki › Provocation_(legal) 

 Ramsey, Carolyn B, ‘Provoking change: Comparative insights on feminist homicide law reform’ (2010) 100, J. Crim. L. & Criminology p. 33. 

Read, S., Santatzoglou, S., & Wrigley, A. (Eds.). (2018). Loss, dying and bereavement in the criminal justice system. New York: Routledge.

 Reed, Alan, and Michael Bohlander, General Defences in Criminal Law: Domestic and Comparative Perspectives. (Routledge Taylor and Francis Group, 2016).

Rench, Stephen C. ‘Building the Powerfully Persuasive Criminal Defense’. (1990) 42 Mercer Law Review, p 569.

 Rosenberg, Roni, ‘Human Dignity and the Doctrine of Provocation: A New Approach’. Notre Dame JL Ethics & Publisher. Pol’y (2020) 34 p 281.

Saliu Muhammed V The State (2019)LCN/12672(CA)

  Seal, Lizzie, and Alexa Neale. ‘In his passionate way’: Emotion, race and gender in cases of partner murder in England and Wales, 1900–39’. (2020) 60(4), The British Journal of Criminology, pp 811-829.

Section 265 of the Penal Code CAP C34 Laws of Federation of Nigeria, 2004.

Sehat, Sepideh,’Committing Murder and Punishment in US Criminal Law’, (2021) 12(13), Turkish Journal of Computer and Mathematics Education, pp 7895-7906

Sing, James J. ‘Culture as sameness: Toward a synthetic view of provocation and culture in the criminal law’. (1999) 108(7), The Yale Law Journal, pp 1845-1884.  

Smith, A, ‘Should the law on corporate homicide be reformed?’ (Doctoral dissertation, University of Glasgow, 2021).

 Sorial, Sarah, ‘Anger, Provocation and Loss of Self-Control: What Does ‘Losing It Really Mean?’ (2019) 13(2). Criminal Law and Philosophy, pp 247-269.

State v. SADIKU, No. 36679 (Idaho Ct. App. Aug. 26, 2010).  

Symeonides, Symeon C. ‘Choice of law in the American courts in 2018: thirty-second annual survey’. (2019) 67(1), The American Journal of Comparative Law pp 1-97.

TANIMU, Adamu Idris. ‘The Right of Self-Defence and Stand Your Ground in Criminal Trials in Nigeria.’ International Journal of Comparative Law and Legal Philosophy (Ijocllep) 2, No. 2 (2020).

Tavris, Carol, Anger: The misunderstood emotion, (Simon and Schuster, 1989).

  Taylor, Laurie J. ‘Provoked reason in men and women: Heat-of-passion manslaughter and imperfect self-defense’. (1985) 33 UCLA L. Rev, p 1679.

  Tedeschi James et al., ‘Aggression and the use of coercive power’. (1977) 33(1), Journal of Social Issues, pp 101-125.

 Ulbrick, Madeleine et al., ‘An argument for diminished culpability manslaughter: Responding to gaps in Victorian homicide law.’ (2019) 45(1), Monash University Law Review, pp 201-231.

 Walliman N, Social research methods: The essentials, (2nd Ed. Sage Publication Ltd. 2015)

Webb, Julian, ‘Information technology and the future of legal education: a provocation’ (2019) 6(3) Griffith Journal of Law & Human Dignity pp.72-104.

 Yeo, Stanley, ‘Anglo-African Perspectives on Self-Defence’. (2009) 17(1), African Journal of International and Comparative Law, pp 118-135. 

Barr. Oliyide. Motunrayo,

Department of Jurisprudence and Public Law, School of Law and Security Studies, Babcock University, Ilishan-Remo, Ogun State, Nigeria. 



Dr. Adekunbi Imosemi,

Associate Professor, Department of Jurisprudence and Public Law, School of Law and Security Studies, Babcock University, Ilishan-Remo, Ogun State, Nigeria. 



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