Authored By: Abdulhameed Sumayyah Adenike
Fountain University, Osogbo, Osun State, Nigeria.
ABSTRACT
Human beings, irrespective of race or culture, are inherently prone to weakness. Among the most potent of these frailties is emotional instability, often expressed through anger or sudden provocation. This condition is so universal that criminal law across jurisdictions has long acknowledged it, permitting provocation as a concession to human frailty, even in grave offences such as homicide. Commendable as this recognition may be, its application within Nigerian law reveals troubling inconsistencies. Although intended to accommodate the temporary loss of self control, the defence paradoxically requires the accused to act with measured proportionality. This demand disregards psychological reality. In the heat of passion, the human mind is destabilized; judgment is impaired, and instinct eclipses rational calculation. To expect proportionality in such a state is to demand the impossible. This article interrogates the proportionality rule as an illogical standard and calls for doctrinal reconsideration to align Nigerian criminal law with psychological reality.
Introduction
The concept of provocation in criminal law is rooted in the recognition of human frailty, introduced by the common law to mitigate the strictness of the single penalty of death for a convict in a murder charge. The defence of provocation in a murder charge has a chequered history. It developed in the English courts in the 16th and 17th centuries2. During this period, death penalty was a mandatory punishment for anybody convicted of murder. The defence of provocation was born out of the consideration that it is virtuous for a man of honour to respond with controlled violence to some forms of offensive behaviour. Overreaction of a proportionate degree was considered a natural human frailty and if death occurred, it was regarded as manslaughter rather than offence of murder3. Across legal systems, it operates as a partial defence, acknowledging that individuals may, under the weight of sudden anger or emotional disturbance, lose self-control and commit acts they would not have committed in a state of calm reflection. This defence has deep jurisprudential foundations, reflecting an intersection of law, morality, psychology, and sociology. It recognises that while human beings are expected to conform to legal and moral codes, the law cannot altogether disregard the inherent weaknesses of human nature.
The defence of provocation is pivoted on the general doctrine of mens rea (guilty mind) and actus reus (guilty act) in English law, and unless the act and the mind of a person are both guilty, such a person cannot be said to be criminally responsible4. In Nigerian criminal law, the offence of murder5 or culpable homicide6, punishable with death attracts a capital punishment. However, the Nigerian Criminal code recognises the doctrine of mens rea and actus reus as it does not hold a person criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurred by accident7. Therefore, a person who unlawfully kills another in the heat of passion occasioned by sudden provocation is guilty of manslaughter only8.
The defence of provocation is codified in 283 of the Criminal Code (applicable in the southern states) and section 222 of the Penal Code (applicable in the northern states). “The term provocation, used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master and servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered”9 . Under these codes, provocation is recognised as a mitigating factor that may reduce a charge of murder to manslaughter, provided certain conditions are satisfied. These conditions, distilled through judicial interpretation, include: (i) the accused must have acted in the heat of passion, (ii) the provocative act must have been sudden, (iii) the act must have been committed before there was time for passion to cool, and (iv) the mode of resentment must be proportionate to the provocation offered10. These requirements have been consistently reaffirmed by Nigerian courts in cases such as Mancini v DPP11 among others.
Commendable as the recognition of provocation may be, its Nigerian application is fraught with contradictions. At the heart of the problem lies the proportionality rule, which demands that even where an accused is adjudged to have lost self-control under the heat of provocation, his retaliatory act must nonetheless be measured and proportionate to the initial provocation. The proportionality rule is codified in section 284 of the Criminal Code12 which states that “A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self- control, and acts upon it on the sudden and before there is time for his passion to cool, provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous harm”13. This requirement creates an intellectual and practical paradox. If the very essence of the defence is the recognition that the accused has lost control, how realistic is it to expect him to retain the rational capacity to measure and proportion his actions? This paradox is not merely a theoretical concern. It raises profound questions about the coherence of Nigerian criminal jurisprudence and its alignment with psychological realities. Anger, as psychologists affirm, destabilises cognitive judgment and reduces rational evaluation, making proportionality in such circumstances nearly impossible14. Yet, Nigerian law continues to impose this burden, placing courts in the difficult position of demanding precision from instability, calculation from impulse, and rationality from irrationality.
The objective of this article is to interrogate this paradox and argue that the proportionality rule, as applied in Nigeria’s defence of provocation, imposes an impossible standard. Through jurisprudential and psychological analysis, the article contends that this requirement undermines the rationale of the defence itself and calls for a doctrinal reconsideration that aligns Nigerian criminal law with the realities of human psychology.
The Psychology of Anger and the Heat of Passion
The defence of provocation is premised on the recognition that, under certain emotional pressures, human beings are not themselves. To appreciate why proportionality is problematic within this defence, one must first understand the psychological and neurological realities of anger, the very condition that the law claims to mitigate.
Modern psychology and neuroscience affirm that anger is not a simple emotion but a neurobiological storm that momentarily destabilises rational processes. When a person is suddenly provoked, the amygdala, the brain’s emotional centre, is rapidly activated, triggering the well-known “fight or flight” response15. This activation floods the body with adrenaline and cortisol, elevating heart rate, constricting blood vessels, and narrowing perceptual focus16. In this state, the prefrontal cortex, the part of the brain responsible for judgment, impulse control, and rational deliberation is effectively suppressed17. Neuroimaging studies confirm that in acute emotional arousal, prefrontal activity diminishes while amygdala activity dominates, leaving the individual less capable of logical evaluation18.
This physiological sequence is what criminal law describes as acting “in the heat of passion.” Yet the term, though legal in origin, is deeply psychological: it denotes a transient state of emotional flooding in which cognitive faculties are impaired19. During such episodes, the brain’s priority is survival and immediate reaction, not proportional assessment. The very essence of provocation is that it momentarily suspends self-control. Expecting a person in this state to measure the weight of their retaliation against the degree of the provocation is not only unrealistic, but also scientifically untenable.
Psychologists highlight that anger in provoked situations often produces tunnel vision20, a narrowing of thought processes in which only the provoking stimulus is perceived with clarity, while all other considerations fade21. Rationality collapses under the intensity of emotional flooding. As Antonio Damasio famously argues in his theory of “somatic markers,” emotions drive decision-making, especially in moments of crisis, often sidelining conscious reasoning22. The provoked individual reacts instinctively, with instinct overriding proportionality.
In legal doctrine, Nigerian courts have repeatedly emphasised that provocation must not merely arouse anger but cause a “sudden and temporary loss of self-control23.” What the law terms “loss of self-control” is in fact a momentary functional insanity, not in the technical sense of legal insanity under the M’Naghten rules, but in the psychological sense of impaired capacity for rational governance. The individual is, in those moments, not themselves; their autonomy is eclipsed by a flood of emotion that overrides reason.
The paradox, therefore, is clear: the Nigerian legal system recognises that provocation suspends rational judgment, yet demands that in this very suspension, the accused act with rational proportionality. Neuroscience demonstrates that in the instant of anger, the brain is not evaluating options on a scale of measured responses; it is reacting in raw instinct24. A person slapped in the face may stab their assailant not because they weigh stabbing as “proportionate,” but because the shock and humiliation trigger an overwhelming surge of instinctive aggression. The violence of the reaction is itself proof of the provoked state, not evidence of its absence.
Thus, to impose proportionality as a condition for the availability of the defence is, in effect, to ask the irrational to behave rationally, to demand that in the midst of passion, reason must still reign. From a psychological standpoint, this is impossible. It disregards the universal structure of the human mind and undermines the very indulgence of human weakness that provocation was designed to protect.
When Courts Demand Rationality in Moments of Madness
Nigerian courts have consistently reinforced the proportionality requirement, even in situations where loss of self-control is undeniable. In Njoku v The State25, where the accused killed the deceased while reacting to a verbal provocation, the Supreme Court dismissed the defence, holding that the law does not excuse an act of disproportionate retaliation, no matter how grave the provocation. The Supreme Court held further as follows: “The faith of the plea of provocation in the circumstance of this case is sealed by the reaction of the Appellant in terms of the proportionality of the provocation with the force or action deployed by Appellant, which were the use of mere words by the deceased and cutlass/matchete by the Appellant in reaction to the verbal provocation”26. While this case demonstrate judicial fidelity to the doctrine of proportionality, it exposes the logical incoherence of the Nigerian approach: to admit that a person has lost control, but then to require that same person to measure their actions by standards of rational judgment.
As Professor C.O. Okonkwo once observed, “to speak of proportionality where self-control has been lost is to speak in contradictions; it is to demand reason at the very point reason has failed.”27
Internationally, the rigidity of proportionality has been softened to reflect human realities. English law, upon which Nigerian law was modelled, long recognised the paradox. In R v Duffy28, In this case of R v Duffy [1949] CA the defendant killed her husband, with a hatchet and a hammer, after mistreatment while he was asleep. Here the classic definition by Devlin J was upheld, at trial Devlin J used the following words which the Court of Appeal thought it might well stand as a classic direction given to a jury: “Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable 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 mind”29. Therefore, now we can see how loss of control comes in to act, though at that time it must have been a sudden loss of control, in contrast with today loss of control need not be sudden.
By 1957, The Homicide Act was introduced, this act was “enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in limited circumstances), reforming the partial defence of provocation, and by introducing the partial defences of diminished responsibility and suicide pact. It restricted the use of the death penalty for murder”. With the Homicide Act, section 3 modified the common law defence of provocation. Previous categories of conduct which amounted to provocation were removed, e.g. “grossly insulting assault, seeing a friend or relative attacked, seeing a citizen being unlawfully deprived of his liberty and seeing a man committing adultery with one’s wife.” The principles set by the case of Duffy 1949 were set out in legislation. They also were clear and simplified with two conditions. Firstly, it was the subjective condition which was the sudden loss of self control (R v Duffy [1949]). This is a subjective test based solely on the actual effect the behaviour. Secondly, the Objective condition. The jury must also find that the reasonable person would have done as the defendant did (R v Duffy [1949]). The act allowed the issue to remain open, allowing for the first time words to constitute provocation, this meant that it was inevitable that the accused’s personal characteristics should be considered by the Court when considering the gravity of the provocation. English jurisprudence has since shifted towards evaluating provocation from the standpoint of an ordinary person subjected to similar circumstances, rather than demanding a rational weighing of responses.
Canadian law is even clearer. In R v Hill30, the Supreme Court stressed that provocation must be understood as an indulgence to ordinary human frailty, and not assessed by the “cold calculus of reason.31” These comparative positions highlight how Nigerian law, by clinging to strict proportionality, diverges from jurisdictions that treat provocation as a concession rather than a contradiction.
Fairness, Human Rights, and the Dignity of the Accused
Criminal law is not merely punitive; it is underpinned by principles of fairness, human dignity, and justice. This tension is not only doctrinal but also constitutional, as seen in Section 36 of the 1999 Constitution and Article 7 of the ICCPR. Nigerian constitutional Law guarantees under section 36 of the 1999 Constitution, the right to fair trial32, which presupposes that individuals are judged by standards consistent with human capacity. Likewise a standard beyond human possibility, under Article 7 of the International Covenant on Civil and Political Rights (ICCPR)33, to which Nigeria is a party, punishment must not be inhuman or degrading.
When the law demands proportionality in moments of proven loss of self-control, it risks imposing an impossible burden. To expect rational calibration during emotional destabilisation is to disregard the frailty that the defence of provocation itself is designed to accommodate. In effect, this amounts to punishing individuals not for what they could control, but for what was momentarily beyond their capacity. Such a standard undermines both substantive fairness and the dignity of the accused, reducing the defence to a hollow doctrine.
Law Must Speak the Language of Humanity
The legitimacy of law rests on its coherence with human experience. Law cannot demand from individuals conduct that contradicts psychological and biological realities. To insist on proportionality in provocation cases is to set an impossible standard, transforming the law from an instrument of justice into a tool of abstraction. If criminal law recognises human weakness, it must do so consistently, without reintroducing requirements that are incompatible with the very frailty it claims to indulge.
Reconciling Law with Psychology: Shifting the Focus From Proportionality to Genuine Loss of Control
The heart of provocation lies not in the measurement of retaliation, but in the recognition of a sudden and temporary loss of control. Neuroscience and psychology confirm that in such states, rational calibration is impossible34. Accordingly, Nigerian courts should shift their focus from the objective question of proportionality to the subjective reality of loss of control. The question should not be, “Was the response proportionate?” but rather, “Was the accused genuinely acting under a state of emotional incapacity consistent with human frailty?”
This shift would align Nigerian law with its own rationale for recognising provocation as a concession to the reality of human emotion and prevent the defence from collapsing under doctrinal incoherence.
Modernising the Defence of Provocation
Several jurisdictions have already modernised the defence of provocation by embedding it in psychological truth. A prime example is the United Kingdom’s “loss of control” defence under the Coroners and Justice Act 2009, which abolished the archaic proportionality requirement35.
Instead, the law focuses on whether the accused, in circumstances of grave provocation, lost self control in a way consistent with ordinary human frailty.
Similarly, Australian courts have leaned towards evaluating provocation with an understanding of emotional incapacity rather than mathematical proportionality36. Canada, too, has repeatedly stressed that provocation should be viewed through the prism of ordinary human weakness, not through abstract rationality37.
These reforms illustrate a growing international recognition that provocation must reflect the psychological condition it seeks to address, rather than impose conditions inconsistent with human nature.
Constructive Recommendations for Nigeria
- Legislative Reforms: The Nigerian legislature should revisit section 283 of the Criminal Code Act and explicitly redefine provocation in terms of loss of control, not proportionality. The statute should reflect modern psychological insights, aligning the law with scientific understanding and comparative best practices.
- Judicial Interpretation: Pending legislative reform, Nigerian courts can adopt a purposive interpretative approach. By construing “reasonable resentment” in light of human psychology, courts can soften the rigidity of proportionality without departing from statutory text. Judicial precedents can, over time, evolve doctrine towards a standard rooted in fairness and human reality.
- Role of Civil Society and Academia: Civil society, bar associations, and academic bodies have a critical role in shaping discourse. Through legal education, public debates, and policy advocacy, they can highlight the incoherence of the current doctrine and push for reforms grounded in psychology and justice.
- Safeguards Against Abuse: A reformed standard need not open the floodgates to misuse. The defence can still be narrowly tailored to apply only where the loss of control is genuine, sudden, and temporally linked to provocation. Courts should remain vigilant to ensure the plea is not invoked as an excuse for premeditated violence.
By aligning the law with psychological truth, Nigeria can maintain the delicate balance between recognising human weakness and safeguarding against abuse. Provocation should remain a partial defence reducing, but not excusing, liability while reflecting the natural limitations of human beings. The judiciary, legislature, and civil society all have vital roles in driving this reform.
If criminal law is to be an instrument of justice rather than abstraction, it must speak the language of humanity: acknowledging that when reason fails, law must respond with coherence, compassion, and balance.
Conclusion
The doctrine of provocation in Nigerian criminal law stands at a critical crossroads. While historically designed as a humane concession to the limits of human self-control, its insistence on proportionality has divorced it from both psychology and lived reality. The consequence is a doctrine that simultaneously acknowledges human weakness yet demands rational precision at the very moment reason is eclipsed. Through jurisprudence such as The State v Mathias Ekpo38 and Njoku v The State39, Nigerian courts have affirmed that provocation must occasion a sudden and temporary loss of control. Yet, by tethering the plea to proportional retaliation, the law undermines its very rationale. Psychology and neuroscience remind us that in the grip of acute anger, rational calibration is suspended40, a reality that cannot be ignored if law is to remain credible.
Comparative jurisdictions, from the United Kingdom’s loss of control framework41 to Canadian42 and Australian reforms43, have demonstrated that it is possible to modernise the doctrine without sacrificing safeguards. These examples prove that provocation can be reframed to reflect human emotional incapacity, while still ensuring the defence is not weaponised as a shield for premeditated violence.
What is ultimately at stake is more than doctrinal coherence, it is the legitimacy of law itself. Criminal law, as an instrument of justice, must speak to human experience in all its frailty. To demand rational proportionality in moments where reason is biologically suspended is to legislate against nature. Such incoherence diminishes trust in the law, and by extension, erodes its moral authority.
Nigeria now has the opportunity to reconcile law with psychology, to craft a doctrine of provocation that is both principled and human. Reform should not be seen as leniency, but as justice: a recognition that the law must hold individuals accountable without denying the natural limits of control inherent in all human beings. Only then can the doctrine of provocation serve its intended purpose, not as an abstract legal fiction, but as a compassionate acknowledgment of our shared humanity.
Reference(S):
Cases
Njoku v The State (1993) 6 NWLR (Pt 299) 272.
Oladipupo v The State (1993) 6 SCNJ 233.
Okpozo v The State (1966) NMLR 1; (1965) 9 ENLR 1.
R v Duffy [1949] 1 All ER 932 (CCA).
R v Green (1955) 15 WACA 73.
R v Hill [1986] 1 SCR 313 (SCC).
R v Igwe FSC 83/1963.
R v Nwango (1963) 1 All NLR 330 (SC).
Southgate (1963) Crim LR 570.
Stingel v The Queen (1990) 171 CLR 312 (HCA).
The State v Mathias Ekpo (2013) 222 LRCN (pt 2) 219.
Legislation
Constitution of the Federal Republic of Nigeria 1999 (as amended).
Criminal Code Act, Cap C38, Vol 4, Laws of the Federation of Nigeria 2010, ss 24, 283, 284, 316, 318, 319.
Penal Code Act, Cap P3, Vol 12, Laws of the Federation of Nigeria 2010, ss 221, 222. International Instruments
International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
Books
Antonio R Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain (Putnam Publishing 1994) 173–179.
C O Okonkwo and M E Naish, Criminal Law in Nigeria (2nd edn, Spectrum Books 2005) 66.
Joseph E LeDoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (Simon & Schuster 1996) 112–118.
Walter B Cannon, The Wisdom of the Body (W W Norton 1932) 227–229. Journal Articles
Daniel R Rosell and Larry J Siever, ‘The Neurobiology of Aggression and Violence’ (2015) 20 CNS Spectrums 254.
Kevin N Ochsner and James J Gross, ‘The Cognitive Control of Emotion’ (2005) 9 Trends in Cognitive Sciences 242, 244–246.
Paul Craig, ‘Theory, “Pure Theory” and Values in Public Law’ [2005] PL 440. Raymond Novaco, ‘Anger as a Clinical and Social Problem’ (1986) 41 Advances in Behaviour Research and Therapy 1, 10–12.
Reactive vs Proactive Aggression: A Differential Psychobiological Review’ (2022) Psychobiology.
‘Understanding Brain Mechanisms of Reactive Aggression’ (2020) Frontiers in Behavioral Neuroscience / PMC.
Law Commission and Reports
Law Commission, Partial Defences to Murder (Consultation Paper No 173, 2003) 6.
1 A Student, College of Law, Fountain University, Osogbo, Osun State. Nigeria
2 United Kingdom Law Commission, Partial Defences to Murder (Law Com CP No 173, 2003) 6.
3 Ibid. 4 C O Okonkwo and ME Naish, Criminal Law in Nigeria (2nd edn, Spectrum Books Ltd 2005) 66.
5Criminal Code Act, Cap C38 Vol 4 Laws of the Federation of Nigeria 2010, ss 316, 319.
6 Penal Code Act, Cap P3 Vol 12 Laws of the Federation of Nigeria 2010, ss 221, 222.
7 Criminal Code Act, s 24.
8 Criminal Code Act, s 318.
9 Criminal Code Act, s 283.
10 Oladipupo v State (1993) 6 SCNJ 233, 239.
11 [1942] AC 1 “Mancini claimed self-defense and provocation. He stated that he was attacked and struck out blindly with a knife he had in his pocket.”
12 Criminal Code Act, s 284.
13 ibid
14 Southgate (1963) Crim LR 570, “… it is illogical for a man cannot both lose his self-control and nicely proportion the ferocity of his reaction to its cause”.
15 Joseph E LeDoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (Simon & Schuster, 1996) 112–118.
16 Walter B Cannon, The Wisdom of the Body (W W Norton 1932) 227–229. Cannon coined “fight or flight,” describing adrenaline’s role in elevating heart rate, vascular constriction, and narrowed sensory attention.
17 Joseph E LeDoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (Simon & Schuster 1996) 162–168.Explains how the amygdala overrides rational processing, limiting the prefrontal cortex during emotional arousal.
18 Kevin N Ochsner and James J Gross, ‘The Cognitive Control of Emotion’ (2005) 9 Trends in Cognitive Sciences 242, 244–246.
19 ibid
20 Raymond Novaco, Anger as a Clinical and Social Problem (1986) 41 Advances in Behaviour Research and Therapy 1, 10–12.
21 Ibid.
22 Antonio R Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain (Putnam Publishing, 1994) 173–179.
23 R V. Green (1955) 15 WACA 73; R v Nwango (1963) 1 All NLR 330 (SC); Okpozo v State (1966) NMLR 1 (1965) 9 ENLR 1; R v Igwe FSC 83/1963.
24 Understanding Brain Mechanisms of Reactive Aggression (2020) Frontiers in Behavioral Neuroscience / PMC; Reactive vs Proactive Aggression: A Differential Psychobiological Review (2022) Psychobiology; Daniel R. Rosell & Larry J. Siever, ‘The Neurobiology of Aggression and Violence’ (2015) 20 CNS Spectrums 254.
25 (2013) 222 LRCN (Pt 2) 219, 254 (A–F).
26 ibid
27 C.O. Okonkwo and M.E. Naish, Criminal Law in Nigeria (2nd edn, Sweet & Maxwell 1980) 244.
28 R v Duffy [1949] 1 All ER 932 (CA).
29 ibid
30 R v Hill [1986] 1 SCR 313 (Canada).
31 ibid
32 Constitution of the Federal Republic of Nigeria 1999 (as amended), s 36.
33 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 7.
34 Joseph LeDoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (Simon & Schuster 1996) 219.
35 Coroners and Justice Act 2009 (UK), ss 54–56.
36 Stingel v The Queen (1990) 171 CLR 312 (HCA, Australia).
37 R v Hill [1986] 1 SCR 313 (Canada).
38 (1975) 5 UILR (PT. 111) P. 350
39 (2013) vol. 222 LRCN (pt.2) 219 at 254 para A – F
40 Joseph E LeDoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (Simon & Schuster 1996) 162–168.
41 Coroners and Justice Act 2009 (UK), ss 54–56.
42 R v Hill [1986] 1 SCR 313 (Canada).
43 Stingel v The Queen (1990) 171 CLR 312 (HCA, Australia).
