Talking Law With Ivie Omoregie: Defence For Murder – Provocation & Self Defence

Over the last few years we have seen an alarming increase in the number of domestic violence incidences between spouses, some of which have eventually led to the death of one of the parties involved.

A few weeks ago I am sure you would have read of a school teacher, called Olamide Dare. From my understanding of the matter, the 24-year-old mother of 2 had been a victim of years of domestic abuse from her loving husband, Akinbobola Dare.

Unfortunately, around the 1^st June 2018, as a result of an argument premised on the Defendant having asked her husband for N50 transportation to take her to work, the deceased was violently stabbed to death by the Defendant.

The Defendant has since claimed self defence due to the frequent incidences of domestic violence; said violence was common knowledge in their local community, and the Defendant’s allegations have since been corroborated by several neighbors, who personally witnessed what the deceased had been doing to the Defendant.

The story has received a lot of media interest, not only because of the gravity of the matter, but also because she had been exemplary in her work as a school teacher, with no prior records of violence. It had been widely acknowledged in the community that the deceased had been a prolific adulterer and drunk, who often demonstrated his affection for his wife with loving slaps to the face.

This article discusses the ingredients of murder and the possible defences for it.

Burden of Proof – Beyond Reasonable doubt
In my previous article on the Criminal Ingredients Of Rape And Kidnapping, I discussed the legal concept of Mens Rea and Actus Reus. As a brief recap all criminal offences must have 2 basic elements, these are: –

• Mens Rea – the mental element, this is the actual calculated plan to commit the crime; and
• Actus Reus – this is the criminal act it self, it may also be an omission to act or being negligent in the discharge of a duty of care.

For most crimes, where the prosecution cannot prove that the defendant exhibited both elements, the charge cannot be successfully maintained.

It is only where the prosecution has, on the face of it, been able to prove beyond reasonable doubt that the defendant is indeed guilty of an offence, that possible defenses may be raised by the defendant and considered by the trial judge.

When dealing with a murder case, the prosecution must prove the following ingredients beyond reasonable doubt: –

1. That the deceased had died;
2. That the death of the deceased has resulted from the act of the defendant; and
3. That the act of the defendant was intentional with knowledge that death or grievous bodily harm was its probable consequence.

The Defence of “Self Defence”
Self defence can only be raised by a defendant in a murder case who is able to show that their life was in so much danger by the violent act of the deceased that the only viable means of possible escape from looming death was to kill the deceased.

However, under Nigerian case law, this defence cannot be validly argued where the defensive measures of the defendant, in a bid to protect him or her self, are not proportionate to the actual level of danger faced. For instance, where two friends are fighting and one threatens the other, citing “I am going to deal with you”, the other cannot then use a weapon on the friend and cite “self defence” as a reason for their actions, as at that point there had been no actual acts of violence.

The Defence of “Provocation”
Under Nigerian case law, provocation is defined as: –
“An act or series of acts done by the deceased to the defendant to make the latter for the moment not master of his mind.”
When arguing the defense of provocation, it is vital for the defendant to establish the following: –

1. That the act which caused the provocation was grave and sudden;
2. That the resultant loss of self control was both actual and reasonable; and
3. That the subsequent retaliation act was proportionate to the act, which caused the provocation.

All three elements mentioned above must be successfully established before the defense can be upheld and sustained.

Unfortunately in an instance where it is deemed that there has been a sufficient interval between the time of the provoking act and the subsequent retaliation, then this defence will fail. The rationale behind this is that once there has been sufficient time for the reasonable man to consider and understand the gravity of his intended actions, the argument that “there was a resultant loss of self control which caused the grave and sudden act” fails.

This is purely because it would be deemed that the defendant had time to reflect, calm down and reconsider the intended actions.

Nothing in this article is promulgated to encourage violence or trivialize domestic abuse.

The sad part about criminal offences in Nigeria is the fact that no effort is made to investigate the reasons for the offence. From my experience with criminal matters, I have come to understand that in most cases the matter is not going to be black and white, and that very rarely do you find identical cases.

There are many instances where a criminal needs a psychiatric hospital and counseling, as opposed to being forgotten in a prison system, which on a good day is wholly inadequate. I can only image the number of men and women who, due to mainly their socio economic background, have not been given the right care at possibly the darkest point in their entire life. I have never been in support of the prison system, and I doubt if I ever will be.

Sadly whilst Olamide Dare, a 24-year-old mother of 2 rots away in Kirikiri high security prison in Lagos, only God knows what has become of her children, or how she is now adapting to a new life she had not quite planned for.

In a country where we have corruption cases that have caused more deaths than the world’s most skillful mass murders, I often wonder the mind of the investigating officers and the criminal justice system as a whole.