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  Summary Notes On the Ingredients of the Offence of Manslaughter

Summary Notes On the Ingredients of the Offence of Manslaughter



By section 317 of the Criminal Code, any unlawful killing which does not amount to murder is manslaughter. Murder is reduced to manslaughter because of provocation. By section 318 of the Criminal Code, if a person kills another in the heat of passion caused by a grave and sudden provocation, and before there is time for passion to cool, he is guilty not of murder but of manslaughter. Thus, provocation is not an absolute defence; but only reduces murder to manslaughter. This later proposition is supported by the decision of the Supreme Court in Ogbonna Nwaede v. The State where it was held that a successful plea of the defence of provocation in a murder charge reduces murder to manslaughter.

Furthermore, on the authority of the decision of the Court of Appeal in Bassey Akalezi v. State, provocation means some acts or series of acts done by the dead man to the accused which could cause in any reasonable man/person and actually causes in the accused a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his or her mind.

Again, according to Ademola CJN in Obaji v. The State cited by Musdapher JSC (while delivering the lead judgment) in Sampson Uwaekweghinya v. The State, section 318 of the Criminal Code, must be read together with section 283 of the Criminal Code which defines provocation and for the purposes of section 318 of the Criminal Code, provocation includes (1) any wrongful act or insult (2) of such a nature that when done to any ordinary person as is likely (a) to deprive him of the power of self control, and (b) to induce him to assault the person by whom the act or insult is done or offered.

He further submitted that to avail himself of the defence in a charge of murder under section 318 of the Criminal Code, the accused must have done the act for which he is charged (i) in the heat of passion (ii) this must have been caused by sudden provocation, and (iii) the act must have been committed before there is time for passion to cool down. This consistent with the opinion expressed in Nwede v. State, Uwagboe v. State and Shande v. State. In the last case, the requirements for the defence of provocation were extended to include the mode of resentment being proportionate to the provocation offered.

In the light of the foregoing, it could be deduced that before a defence of provocation can avail an accused person, he must in the first place establish that he lost his control due to provocation and that the provocation was such as will cause a reasonable man in his station in life, socio-cultural background and standard of civilization to lose his self control. Consistent with this assertion is the dictum of Francis J. in R v. Adekanmi, where he opined, while considering provocation, that the effect it would be expected to have on a reasonable man must be taken to mean the effect it would be expected to have on a reasonable man of the accused’s standing in life. This is relevant because an act committed by the deceased against an illiterate and primitive peasant may amount to legal provocation; while, it may not do so if committed against an educated and civilized person.

In Shande v. The State, the Supreme Court held that the defence of provocation availed an accused person who set another ablaze after pouring kerosene on her. The court per Ejiwunmi JSC (who delivered the lead judgment) held that it is the duty of the trial court to have considered whether a reasonable person in such circumstances in consequence of such conduct, and the history of the existing relationship between the appellant and the deceased might be so rendered subject to passion or loss of self-control as to be led to use violence with fatal results.

By the same token, in the English case of DPP v Camplin, the House of Lords had held that in applying the reasonable man test, the jury, could take into account everything including the physical peculiarities of the accused such as his age, colour, sex, physical and mental disabilities. The jury should be told that the reasonable man is a person having the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as the think would affect the gravity of the provocation to him.

Secondly, the accused must establish that the act which causes death was done in the heat of passion caused by sudden provocation and before there is time for passion to cool. Thus, if between the provocative act and the killing enough time has elapsed for passion to cool, a plea of provocation will fail. In R v. Green, the accused had returned to the house after witnessing his wife having sexual intercourse with another man in his mother in law’s house. His plea of provocation for killing his wife and mother in law subsequently was rejected because before the provocation and the killing enough time has elapsed for his passion to cool.

Also, in Frank Uwagboe v. The State, where the deseased had accused the appellant of stealing their father’s N60.00k. The plea of provocation failed. The Supreme Court Per Akintan JSC (WHILE delivering the lead judgment) held that although the accusation of stealing N60.00k could amount to provocation, the stabbing of the deceased did not follow instantaneously. And, in determining whether there has been enough cooling time, it is proper to take into account the degree of provocation offered.

Thirdly, the resentment must be reasonably proportionate to the provocation offered. This aptly illustrated by the case of R v. Akpakpan, where a woman who brought the dead daughter’s body home was remonstrated by the husband against such conduct. She used filthy and offensive language on him and he stabbed her five times with a heavy dagger. It was held that the degree and method of violence used by him precluded the court from bringing a verdict of manslaughter. Also, in Uwagboe v. The State, the court held that the appellent’s retaliation was equally very disproportionate to the provocation. He had reacted by using a lethal weapon on the deceased and inflicted grievous harm on him when the alleged provocation was over accusation of theft.

This position of the Law is further strengthened by the decision of the Court of Appeal in Twumasi v. State, while following the Supreme Court’s decision in Nwede v. State, which is to the effect that provocation in section 318 of the Criminal Code requires a consideration of the nature of the weapon or force used as a mode of resentment bearing reasonable relation to the provocation received, the disproportionate being a factor for the jury to consider in determining whether the accused has lost control of himself or was acting for a reason other than complete loss of self control caused by sudden provocation.

Accordingly, in considering this question, the courts take into account the nature of the instrument with which the homicide was effected and the nature of the act resulting from the provocation. But, in Uwaekweghinya v. The State, the court was of the view that the issue of the weapon used being disproportionate to the attack on the appellant is of no moment, what the law requires is that the retaliation should be proportionate to the provocation. That is why in cases of insult still provocation may avail an accused person to reduce the offence of murder to manslaughter.

Again, provocation can emanated from words and (or) insults. But, it is submitted that words or insults could be amount to sufficient provocation to avail an accused person and justify a verdict on a lesser offence than that with which the accused person was charged for: R v. Edache. Thus, calling a Muslim a pegan may amount to provocation – Adamu Komo v. State. But, in Akalezi v. The State, the court opined that for words to suffice, certain ingredients must be established as fulfilled: (a) the words themselves must be such as to incense a reasonable man of such an accused person’s standard and education in life to anger of such a nature as to lead him to passion or loss of self control; and (b) the accused person must not have had the time to cool down before he did the act with fatal consequences/results which led to the charge.

This is in tandem with the decision in Uwagboe v. The State and for the purpose of section 318 of the Criminal Code includes; any wrongful act or insult of such a nature when done to an ordinary man as is likely (i) to deprive him of the power of self control and (ii)  to induce him to assault the person the person by whom the act or insult is offered. Lastly, note that provocation only reduces the offence of murder to manslaughter.

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16:42:00  Bassey Akalezi v. State, criminal, Criminal Law, Nigerian Criminal Offences, Ogbonna Nwaede v. The State, provocation, section 317 of the Criminal Code, section 318 of the Criminal Code

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