CRIMINAL LAW AND PROCEDURE – DEFENCE OF SELF-DEFENCE/PROVOCATION – Whether the defence of provocation and self-defence are mutually exclusive


“…I, actually, find it curious that the appellant [as accused person at the trial Court] set up the defences of self- defence and provocation at the same trial. Whereas, the Criminal Code provides for the defence of self-defence in Sections 286 and 287, the same Code provides for the defence of provocation in Section 284. Whilst the former [the defence of self – defence] is an exculpatory defence because, where it is established, it exonerates the accused person, Uwaekweghinya v The State [2005] 9 NWLR (pt 930) 227, the latter is, merely, an attenuating or a mitigating defence. Where available, it merely, attenuates; dis-rates or demotes the offence from murder to manslaughter. In effect, the defence of provocation does not exonerate the accused person. It, only, earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter, Uraku v State (1976) LPELR-SC. 300/1975; [1976] 6 SC 128; Akang v State [1971] 1 All NLR 47, 49; Musa v State (2009) LPELR-SC.323/2006; [2009] 15 NWLR (pt 1165) 465. Other cases include: Ada v State (2008) LPELR-SC.242/2004; [2008] 13 NWLR (pt.1103) 149; [2008] 34 NSCQR 508; Ajunwa v The State [1988] 1 SC 110; Laoye v The State [1985] 2 NWLR (pt 10) 832; C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books, 2000) 240; C. O. Okonkwo, “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol 11 (1973) 93-97. It is, thus, the dissimilarity in the consequences of the availability of these defences that make them, mutually exclusive, that is, that make them inconsistent defences – defences that cannot avail an accused person at the same time, Ibrahim v State (1991) LPELR-SC.167/1990; [1991] 4 NWLR (pt 186) 399; [1991] 5 SCNJ 129.” Per CHIMA CENTUS NWEZE, JSC in WOWEM v. STATE(2021-LCER-40502-SC) (Pp 57 – 59; Paras E – B)

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