MUSTAPHA TIJANI v. THE STATE
(2014)LCN/6911(CA)
RATIO
WHERE THE DEFENCE PROVOCATION WOULD AVAIL THE DEFENDANT FOR THE OFFENCE OF MURDER
This is because for the defence of provocation to avail the appellant, the utterance or action of the deceased to the accused must be such that would cause a reasonable person and actually caused a sudden and temporary loss of self control, so much so that for the moment he is not a master of his mind. The act of killing must have been done in the heat of passion and before there was time for passion to cool and it must be proportionate to the provocation. See FABIYI JSC in Gambo Musa V. The State (2009) ALL FWLR (Pt.492) 1020 (2009) 15 NWLR (PT.1165) 467 at 491. See also R. v. Duffy (1949) 1 ALL E. R. 8932, Mancini V. D.P.P. (1942) A. C. 19 and R. V. Blake (1942) WACA 118.
In the instant case, if nothing else, in relation to the defence of provocation, the retaliation of the appellant by breaking the skull of the deceased with stick or wood would not have been proportionate to the provocation offered if any.
The Learned Trial Judge was therefore not wrong when he held at page 67 of the record that:
“I am not unmindful of the position in law, which is that it is my duty to consider all the defence raised by the evidence whether the accused persons specifically put them up in court or not. These other defence may include self – defence, provocation, accident, insanity e.t.c. Albeit it is not right for the court to conjecture or imagine points in respect of which no evidence is raised or given. See AKPANKERE APISHE & 22 ORS. V. THE STATE (1971) 1 NMLR 39 at 42. Per MOJEED ADEKUNLE OWOADE, J.C.A
WHETHER MENS REA IS AN ESSENTIAL ELEMENT TO PROVE THE OFFENCE OF CONSPIRACY
The mens rea which is an essential element of the common law offence of conspiracy consists in the intention of executing the unlawful elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct unlawful. Thus, a person cannot be a party to an agreement by virtue of an uncommunicated intention to enter into that agreement. Neither will the accused be guilty of conspiracy to commit that offence unless he and at least one other person to the agreement intend or know that that fact or circumstance will exist at the time when the conduct constituting the offence is to take place. See Churchill V. Walton (1967) 2 AC 224, 51 Cr. App. Rep. 212 R. v. Clayton (1943) 33 Cr. App. Rep. 113 CCA, R V. Jacobs (1944) KB 417, 30 Cr. App. Rep. 1 CCA. Kamara V. D.P.P. (1974) AC, 104 at 119, 57 Cr. App. Rep, 880 at 895, HL per Lord Hailsham of St. Marylebone LC., R. V. Allsop. (1976) 64 Cr. App. Rep, 29, CA. Per MOJEED ADEKUNLE OWOADE, J.C.A
