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Published online by Cambridge University Press: 28 July 2009
Provocation is dead! It died at the Supreme Court of Nigeria. The funeral oration was read by Kazeem J.S.C., while the funeral dirge was chorused by four other judges of the same court. The case was Ganiyu Olatokunbo Oladiran v. State The facts of the case were as follows. The appellant was a secretary of Design Group Ltd., a firm of chartered architects based in Ibadan. His marriage with the deceased came to be as a result of a pregnancy presented to him by the deceased. Their matrimonial history was one of intermittent quarrels, accusations and counter-accusations of infidelity against the appellant and insubordination against the deceased. The deceased had always accused the appellant of showing interest in their maid, a girl of about 13 or 14 years of age. The appellant had on the other hand accused the deceased of smoking cigarettes which he disliked.
The climax to their matrimonial squabble came, to a head on the 21 September, 1982. On that day, there was as usual a quarrel between the appellant and the deceased. There was an abortive attempt at settlement by the deceased's parents. Later that day the deceased refused to cook for the appellant and told him to ask his “second wife” (the house-maid) to cook for him. She also abused him. Thereafter the appellant got a knife and stabbed the deceased to death. The appellant subsequently made an abortive attempt at committing suicide.
1 Irikefe C.J.N., Aniagolu, Coker and Oputa, JJ.S.C.
2 [1986] 1 N.W.L.R. 75 (Part 14).Google Scholar
3 (1956) 1 F.S.C. 1.Google Scholar
4 [1963] 1 All E.R. 73.Google Scholar
5 Oladiran v. State (above) at 83 & 84.Google Scholar
6 Northumberland Assize Rolls, (Surt Soc) 94—recorded in Bracton's note book cases, 1084.Google Scholar
7 “The most striking illustration of this fact is the rule that a person who had committed homicide by misadventure or se defendendo (though not guilty of felony) needed a royal pardon”—A. Holdsworth A History of English Law, Vol. III, 312.Google Scholar
8 “As men ceased to go about armed and manners became calmer, the sudden clashes of the past became a means by which to alleviate from the consequences of murder in cases where there was some moral excuse for the act …” Potter's Historical Introduction to English Law—Fourth edition, 367.Google Scholar
9 John Royleg's Case Cro Jac 296Google Scholar, R. v. Grey-Kelying (1666) 64, 65Google ScholarR. v. Keife 1 Ld. Rayon 144.Google Scholar
10 For instance, Holt C.J. in Mawgridge (1707) Kel 199Google Scholar laid down as a matter of law the following circumstances which would amount to sufficient provocation (i) striking of the accused by the deceased; (ii) angry words followed by an assault; (iii) the sight of a friend or relative being beaten; (iv) the sight of a citizen being unlawfully deprived of liberty; (v) the sight of a man in adultery with the accused's wife. The following circumstances would be insufficient to reduce muder to manslaughter (a) words alone; (b) effrontery gestures; (c) trespass to property; (d) misconduct by child or servant; (e) breach of contract.
11 R. v. Nwarijoku (1937) W.A.C.A. 208Google Scholar, R. v. Afonja (1955) 15 W.A.C.A. 26.Google Scholar
12 [1965] All N.L.R. 269.Google Scholar This is also the position in Queensland from where we copied our criminal code. S. 268 of the Queensland code has been read into s. 304 of the same code. Applied in Sabri Isa (1952) Q.S.R. 269.Google Scholar
13 Before the 1957 Homicide Act, mere words were insufficient to ground the defence of provocation in England. See Holmes v. D.P.P. [1946] A.C. 588.Google Scholar However by s. 3 of the Act, mere words are now sufficient.
14 Smith, A. T. H., “The Provok'd Drunk”, (1981) 44 M.L.R. 567 at 571.Google Scholar
15 Brown, B. “The Ordinary Man in Provocation” (1964) 13 I.C.L.Q. 203.Google Scholar
16 Ordinary man and reasonable man are synonymous myths in law. They would be used interchangeably here.
17 Maybe to forstall excessive leniency by juries.
18 (1837) 8 C. & P. p. 115.Google Scholar
19 Hitherto, the ubiquitous reasonable man held sway in Civil Law, especially in the law of negligence.
20 Ibid. 119.
21 (1869) 11 Cox 336.
22 38 Cr. App. R. 81.
23 (1931) A.I.R. Mad 25.Google Scholar
24 In the absence of the jury system, the opinion of assessors becomes inevitable. However, in Nigeria, it does appear that what constitutes a reasonable man is the judges' prerogative. In the final analysis what the judge does is to put himself in the place of the accused. The correctness of his decision depends on how far he is able to empathise with the accused.
25 (1972) 12 S.C. 67 at 74, Adamu Kumo v. The State [1967] All N.L.R. 289 at 291–292.Google ScholarOladiran v. The State (1986) 1 N.W.L.R. 75Google Scholar, R. v. Adekanmi (1944) 17 N.L.R. 99.Google Scholar
26 (1958) S.L.J.R. 12 at 14.Google Scholar
27 Ibid at 14. However compare with position in South Africa where no concession is made to the black or coloured offender. See R. v. Mbombela (1933) A.D. 269, 273–274.Google Scholar This is an aspect of the obnoxious apartheid policy.
28 R. v. Alexander (1913) 109 L.T. 745Google Scholar, R. v. Lesbini “1914” 3 K.B. 1116.Google Scholar
29 Mancini v. D.P.P. [1942] A.C. 1.Google Scholar
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31 [1954] 1 W.L.R. 1119.Google Scholar
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35 It is however felt that this requirement restricts the operation of Complin. According to Smith “… in Complin there was no real connection between the characteristic and the provocation offered”, Smith, A. T. H. (1981) 44 M.L.R. 567.Google Scholar
36 This is probably another manifestation of the court's reluctance to allow intoxication play a mitigation role in criminal liability.
37 Williams, G.—“Provocation and the Reasonable Man” [1954] Crim. L.R. 740Google Scholar.
38 “The Doctrine of Provocation” [1976] Camb. L.J. 292, at 299.Google Scholar
39 Also see the argument propounded by late Dr. Turner. It's main thrust is that the objective test is a contradiction in terms, because the defence of provocation purports to be a concession to human frailty, yet it refuses to extend the defence to those with abnormal qualities. On this argument Ashworth says: “The defence of provocation is for those who are in a broad sense mentally normal” op. cit. p. 292.
40 The question here is, do we have a reasonable Nigerian? or is it reasonable Northern, Southern, Edo, Yoruba, Ibo man? Or is it reasonable Bendel, Kano, Lagos man? Or is it the reasonable urban or rural Nigerian?
41 Smith, & Hogan, : Criminal Law 4th edn, London, 297.Google Scholar
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45 Thuku (alias Nyaga) v. Republic [1965] E.A. 496.Google Scholar
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47 “The punishment inflicted must not greatly exceed the offence received (though) the law will not examine with the most scrupulous nicety whether he cut off the exact pound of flesh” East Pci, 234, at 239.
48 [1986] 1 N.W.L.R. 75, 94.Google ScholarSee also Mbode v. State (1982) 1–2 S.C. 126Google Scholar, Obaji v. State (1965) 1 All N.L.R. 269Google Scholar, Uraku v. State (1976) 6 S.C. 195.Google Scholar
49 Hume, David—A Treatise on Human Nature ed. Selby-Bigge, (1888) p. 415.Google Scholar
50 Howard, , Australian Criminal Law 2nd edn. p. 323.Google Scholar
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52 1976 Camb. L.J. 292 at 209Google Scholar, see also Brett's scientific explanation. According to him: “The brain initiates a reaction which in its turn stimulates the brain to produce a further reaction. In this way the body under stress, prepares for strenuous physical action. If such an action occurs, as it often does, the process comes to an end, fairly soon after the action has taken place; but in the absence of immediate physical action, the changes just described persist for sometime, during which the anger that produced them continues. And it is important to realize that the system producing these changes functions in such a way that the changes have something of an all-or-none quality; they are not (pace Lord Diplock) nicely proportioned to the intensity of the precipitating anger or fear”—The Physiology of Provocation—[1976] Crim. L.R. 634 at p. 637.Google Scholar
53 Brett, P.—“The Physiology of Provocation”, [1976] Crim. L.R. 634 at 637.Google Scholar
54 East 1 pc 234: This may be rationalised on the ground that where a killing displays a very horrid show of violence, it cannot be attributable to provocation but to innate wickedness of the accused. See also Ashworth: The Doctrine of Provocation.
55 [1963] 1 All N.L.R. 280.Google Scholar
56 Ibid., p. 284.
57 The definition of assault in the criminal code includes battery—see s. 252 C.C.
58 s. 283 C.C.
59 (1837) 3 Car & P. 182.Google Scholar
60 [1964] V.R. 248Google Scholar, See also Harrington (1866) 10 Cox C.C. 370Google Scholar:—provocation to daughter in presence of father. Held, father was entitled to be provoked.
61 Reagan, O', Indirect Provocation & Misdirected Retaliation [1968] Crim. C.R. 319.Google Scholar
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72 This has now acquired a technical meaning which bears no relation to the ordinary meaning of the words. According to Coke; malice aforethought exists “when one compasseth to kill, wound or beat another and doth it sedato animo” and that the malice was “so odious in law that though it be intended against one, it shall be extended towards all.” Third Institute p. 51.Google ScholarSee also Kenny, , Criminal Law pp. 137–138.Google Scholar
73 Fitzjames Stephens correctly states that the whole law of provocation rests upon the fiction of implied malice. History of Criminal Law (iii 87).
74 The Doctrine of Provocation, 65 LQR 547 at 549.Google Scholar
75 See also Kaye: “The distinction (between murder and manslaughter) rested upon a supposition that a pre-meditated killing, arising from a prior animosity or course of hostilities between the parties was of necessity more heinous than a killing which though deliberate, had been accomplished in a brawl or tumult at a time when the mind of the culprit has been inflamed by anger”, The Early History of Murder & Manslaughter, 83 LQR 365.Google Scholar
76 (1880) 5 Cush 295.Google Scholar
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78 Ibid., p. 124.
79 See Devlin, Lord in Lee Chun-Chuen v. R. [1963] 1 All E.R. 73 at 76.Google Scholar “It is plain that Viscount Simon must have meant the word ‘actual’ to have a limited effect that he had in mind some particular category of intention. He cannot have meant that any sort of intention to kill or cause grievous bodily harm was generally incompatible with manslaughter because that would eliminate provocation as a line of defence”.
80 Criminal Law 4th edn. 293.Google Scholar
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84 Oladiran v. State [1986] 1 N.W.L.R. 75 at 84.Google Scholar
85 Per OPUTA J.S.C. at p. 77.Google Scholar
86 Howard, “Provocation and Homicide in Australia” (1959) The Australian Law Journal, 33, 60.Google Scholar
