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Political Science Law OPEN ACCESS

THE INCOMPATIBILITY OF THE DEFENCE OF PROVOCATION AND ALIBI: A CASE REVIEW OF THE STATE V. OGUNBOYO RICHARD (UNREPORTED) CHARGE NO HAD/80C/2017

E.K. Adetifa
LL. B, LL.M, BL, PhD, Department of Public Law, Senior Lecturer, Faculty of Law, Ekiti State University, Ado-Ekiti, Nigeria
Oluwayemi. O. Ogunkorode
LL. B, LL.M, BL, Department of Public Law, Faculty of Law, Ekiti State University, Ado-Ekiti, Nigeria
DOI Crossref DOI 10.37547/tajpslc/Volume05Issue09-07
tajpslc 2023
VOL. 5 / NO. 09 SEPTEMBER
FULL TEXT PP. 40-53
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VOLUME 5
ISSUE 09
YEAR 2023
PAGES 40-53
RESEARCH OVERVIEW

Abstract

Provocation and alibi are two of the defences available to a defendant under the English Law albeit they operate at a cross road in that the availability of one depicts the non legal availability of the other to a defendant facing allegation of crime. By its intrinsic nature, a defendant who relies on the defence of provocation has explicitly admitted both the mens rea and actus reus of the offence alleged but denied malice aforethought. In contradistinction however, alibi is an outright defence of non-participation in the offence on the ground that the defendant was elsewhere when the offence took place. The jurisprudential rational behind the defence of alibi is the impossibility of simultaneous physical presence of the defendant at two different locations. It is noteworthy to stress that the defence of alibi enjoys qualified application while considering parties to offences as a defendant need not be physically present to be culpable where he has either acted as accessory before the fact or accessory after the fact in which case, his physical presence at the scene of the alleged offence is of no moment before attracting criminal responsibility. This study examined the two irreconcilable defences of provocation and alibi through a case review with intent to unveiling whether or not a defendant can be availed of the defence of provocation in the same case where the defence of alibi earlier set up by him fails. This study however, concluded that both alibi and provocation cannot exonerate or sustain defences for the defendant at the same time because they are contrasting defences that cannot go together. The study also concluded that in applying the ingredients of the defence to the fact in issues, none of the ingredient must be left in isolation or wrongly applied to justify a defence for the defendant.

RESEARCH TOPICS

Keywords

Provocation alibi malice aforethought

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References

  1. Such as defence of accident, self-defence accident, insanity, provocation, alibi, defence of dwelling house defence of property among others. Aliyu v. State (2018) All FWLR (Pt. 920) 179; Sheu v. State (2018) All FWLR (Pt. 920) 179 Odiaka v. State (2016) All FWLR (Pt. 849) 994.
  2. Odunlami v. Nigerian Navy (2014) All FWLR (Pt. 720) 1205.
  3. Dajo v. State (2018) All FWLR (Pt. 970) 1014 Dada v. State (2018) All FWLR (Pt. 920) 77 Ibid
  4. Muh’d v. State (2018) All FWLR(Pt. 936) 1428.
  5. Nwalu v. State (2018) All FWLR (Pt. 966) 262 Okpako v. State (2018) All FWLR (Pt. 963) 1889 Kassim v. State (2018) All FWLR (Pt. 932) 733.
  6. David v. C.O.P. Plateau State Command (2019) All FWLR (Pt 1022) Pg 1027 at 1044 Paras. D-E
  7. Section 212 (1) (a) 1999 Constitution of the Federal Republic of Nigeria.
  8. Section 232 of the Criminal Code
  9. R v. Tran, 2010 SCC 58, (2010) 3. S. C. R. 350
  10. Ibid
  11. Ibid
  12. Eze v. State (2019) All FWLR (Pt. 1012) 758
  13. Owhoruke v. Commissioner of Police (2015) All FWLR (Pt. 801) 1401
  14. Shande v. State (2005) 12 NWLR (Pt. 939) 301, Afosi v. State (2013) 13 NWLR (Pt. 1371) 329
  15. (26 C.A.R. 74)
  16. Uwagboe v. State (2008) All FWLR (Pt. 419) 425
  17. (2023) All FWLR (Pt. 1183) 755
  18. (2009) All FWLR (Pt. 1012) Pg 653 at 664 paras C-D Dawai v. State (2018) All FWLR (Pt. 970) 923
  19. Simon v. State (2016) All FWLR (Pt. 822) 1741 Adebiyi v. State (2016) All FWLR (Pt. 827) 739.
  20. Adeyemi v. State (2018) All FWLR (Pt. 929) 282
  21. Aliyu v. State (2007) All FWLR (Pt. 388) 1123
  22. Osagwu v. State (2013) ALL FWLR (Pt. 672) 1602 at 161.
  23. Bozin v. State (1985) 2 NWLR (Pt. 8) 538.
  24. Otumbere v. State (2013) LPER CA
  25. State Ekanem (2016) LPELR 41304 Victor v. State (2013) 12 NWLR (Pt. 1369) 465; Yunusa v. State (2018) All FWLR (Pt. 920) 115
  26. Oko v. State (2018) All FWLR (Pt. 968) 514, Ogu v. Commissioner of Police (2018) All FWLR (Pt. 928) 31.
  27. Abdullahi v. State (2017) All FWLR (Pt. 869) 896
  28. Eyop v. State (2013) All FWLR (Pt. 681) 1571
  29. (2017) All FWLR (pt. 895) Pg. 1654 at 1683 Paras. D-E
  30. (1988) 1 NWLR (Pt. 70) 274
  31. (2019) All FWLR (Pt. 1001) Pg. 745 at 774-775 paras G-A. See also Ahmed v. State (1999) 5SCNJ 223, (1999) 7 NWLR (Pt. 612) 641 at 681; Akpabio v. State (1994) 7 NWLR (Pt. 359) 635 at 671, (1994) 7-8 SCNJ 429 referred to (Pg. 774-775; paras. G-A.
  32. (1985) 1 NWLR (Pt. 11) pg. 125 at 141
  33. Fatilewa vs. State (2007) 5 ACLR at 610. See also: Ikpasa vs. Bendel State (2007) 5 ACLR Pg. 464 at 469 Ratio 25.
  34. (2019) All FWLR (Pt. 1002) Pg. 1027 at 1044 Paras. G-H
  35. (2011) ALL FWLR (Pt. 563) Pg. 1849 at 1862 – 1863 paras H-A. See also: Green v. Green NWLR (1986)