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Title page




Table of content

Table of cases

Table of statues

List of abbreviation



1.1 Background of the study

1.2 Statement of the problem

1.3 Purpose of the study

1.4 Significance of the study

 1.5 Research Question

1.6 Scope and limitation of the Study

1.7 Research Methodology

1.8 Definition of Terms

1.9 Literature Review


2.1 Introduction

 2.2 The mental element

2.2.1 Intention and motive

2.2.2 Recklessness

2.2.3 Negligence

2.3 Malice

2.4 Knowledge

2.5 Unwilled acts

2.6 Accidental event of willed acts


3.1 Introduction

3.2 Ingredients for the defence of provocation

3.2.1 Heat of passion

3.2.2 Sufficiency of provocation

3.2.3 Suddenness of reaction

3.2.4 The Intensity of provocation

3.3 Test of provocation

i. Provocation and the reasonable man

ii. Provocation and proportionality role

iii. Reasonable retaliation

iv. Provocation offered by a third party

3.4 Provocation as a defence to criminal liability

3.5 The interrelationship  between mens rea and provocation


4.1 Introduction

4.2 Intent to kill

4.3 Proof of murder

4.4 Transferred malice

4.5 Continuing acts

4.6 Chain of event

4.7 Manslaughter

4.8 Mitigating effect of a plea of provocation on murder

4.9 The link between Mental element of a crime and the defence of provocation.

CHAPTER FIVE: Summary, Conclusions and Recommendations

5.1 Conclusions

5.2 Recommendations


Table of cases

Table of statutes



This research project examines the link between the doctrine of mens rea and the partial defence of provocation in cases of an unlawful homicide. It provides a comprehensive account of his application of the doctrine both in Nigeria and other jurisdictions.

The research was a library based research- data was drawn from primary sources such as case laws, law reports, and some relevant statutes, as well as secondary sources such as books, scholarly articles in journals, web-based information.

This work  proffers a workable recommendations in the adoption of the mens rea doctrine.



1.1        Background of the study

No legal system exists without having some degree or other incorporated simple moral idea that no one should be convicted of a crime unless some measure of subjective fault can be attributed to him. Most offences are defined in terms of intention or knowledge. Defences are provided for those who cannot be said to be at fault, for those who acted under compulsion or unconsciousness, and so on.[1]

Despite the overwhelming significance of this principle, which is of general application to any crime unless excluded by the definition of that crime itself. The drafting of certain offences is so ambiguous that it is not clear whether the prosecution is required to prove any particular state  of mind against the accused, and therefore the defence may wish to invoke a general doctrine that a mental element is required, thus casting the onus on the prosecution. It is a basic doctrine of English law that no one should be punished for committing an offence unless the prosecution proves intention or guilty knowledge on the part of the offender. This is known as the doctrine of mens rea. It is also of note that the doctrine has been imported into Nigerian law, the scope of the doctrine is wider in respect of common law offences than in statutory ones.

Practically, every common law offence requires proof of intention or guilty mind. In Nigeria thedoctrine of mens rea is, at best, a rebuttable presumption .Inpoint of fact, this doctrine, as a source of the principle of liability without fault has practically lost its relevance in Southern Nigeria, given the provisions of Section 24 of the Criminal Code.[2] In Northern Nigeria, reference to mens rea may also be of little value considering that the definitions of most offences created by the penal code contain the requirement that prosecution must prove guilty knowledge.

            However, the applicability of this doctrine has been subject of controversy in many legal jurisdictions, it is submitted that the real answer to the problem of finding out the policy of the legislature is that unless that policy makes itself quite clear, then it is vain for the court to grope after what they conceive that that policy might have been. It is safest, in the absence of clear wording, to assume that mens rea was intended to be presumed as an ingredient of the offence. Again the Queensland courts have rejected the suggestion that the doctrine of mens rea is part of the criminal law of Queensland. There was tendency to ignore its provisions in favour of the common law. But the subsequent emphasis placed on the code, have shown, he suggests that the principle of ‘’ No liability without fault’’ is better protected under their code than under the common law[3] . The common law doctrine of mens rea has been subject to varied judicial and statutory interpretations, suggesting reforms of the law. To this end, it is imperative to achieve this by legal evolution rather than revolutionary means[4].In the words of Salmond:

As a society alters, so do its needs, and a serviceable legal system must

Be able in its development to take account of new social, political and

Legal requirements. Given an unalterable system of law, the necessary

Changes can only be brought about by violence and upheaval; law that

 Is capable of adaptation, whether by legislation or judicial development


Thus, if the alteration in the societal pattern or development does not reflect evolution of and efficient legal system bereft of ambiguity in the corpus of its statute, there can be no guarantee of justice .A vulnerable area of conflict is the application of the doctrine of mens rea in strict liability offences, unlawful homicide and how a plea of provocation can exculpate the accused rather than mitigate the sentence has been a subject of controversy in the resolution of criminal cases.

1.2 Statement of the Problem

There is need for a review or amendment of legislations on the doctrine of mens rea. The subjection of a defendant entirely free from blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure. Crimes punishable with prison sentences, therefore ordinarily require proof of guilty intent. The dynamics of the modern global system brought about by the complexities of globalization have thrown up new challenges that call for legislative and judicial action on the proper enunciation, application and utilization of the doctrine.

            However, it is argued, that an issue at the core of Federal criminal law reform is the restoration of the mens rea requirement and addressing the erosion of mens rea, appreciating the initial importance of mens rea and the connection between the erosion and the growth of federal criminal law. Finding a workable way to reassert mens rea within the context of so many complex and differently drafted federal criminal provisions is challenging, but necessary reform[6] in the common law jurisdiction[7] .To this extent ,Nigerian law, particularly the aspect bordering on the application of the doctrine of  mens rea, needs to move at about the same pace with the global legal jurisprudence.

1.3 Purpose of Study

The objectives of this academic research project are:

To embark on an examination of the doctrine of mens rea and its nexus on cases of unlawful homicide; its effect on the partial plea of defence of provocation.

To provide a thorough examination of the meaning, scope and operation of the doctrine in different legal jurisdictions.

To undertake a comprehensive review of available literature, evaluations of case law and statutory provisions, concerning every aspect of the subject-matter.

To offer a recommended policy framework as a panacea for the perceived lapses inherent in the operation of the doctrine.

1.4 Significance of the Study

This research project is significant because it examines the general application of the doctrine of mens rea in various jurisdictions; and theoretically reviews contributions made by academics and practitioners in this area. Recent global agitation for the repeal of capital punishment as a mode of sentencing, brought to fore the necessity of examining the law relating to criminal culpability and sentencing. This is intended to highlight the various inadequacies in the law and suggest an effective legal framework that the doctrine can operate.

The study will provide essential clarifications on the subject-matter and give the reader a proper conception of what the doctrine entails. It also draws the attention of a future researcher to enormous literature on the issue. This will be of immense benefit and interest to the academic world in particular and general public at large.

1.5 Research Questions

The following research questions constitute the main thesis of this work namely:

What is the effect of the doctrine of mens rea in justice dispensation?

What is the origin, meaning, scope and extent of application of the doctrine?

Is the doctrine of any contemporary relevance, utility or significance given the provisions of the statute in general and section 24 of the Criminal Code in Nigeria?

Is the doctrine of any relevance in cases of unlawful homicide; if the partial plea of provocation is availed? 

1.6 Scope of Study

The study covers the Nigerian legal system, Common Law, Queensland and other legal jurisdictions. The contents of this work encompasses the different approaches to the definition, origin, meaning, scope of the doctrine, vis – a – vis different ramifications of its application. 

However, to achieve this, it assesses and analyzes various judicial and statutory authorities relevant to the issue, and presents an extensive review of available and relevant literature.

1.7 Research Methodology

            The methodology to be adopted in this work will be library based, hence analytical, comparative and prescriptive method would be employed. The appraisal as well as the critical examination of the application of the doctrine of mens rea and a plea of provocation in cases of unlawful homicide makes the analytical approach a preferred option. The comparative method is derived from the need to borrow a leaf from the approaches and positions in other compatible jurisdictions around the world. The prescriptive method is adopted because recommendations and useful suggestions for reforms are proffered. It is also descriptive in its objective consideration of the issues and trends as well as the numerous literature which form the basis of analysis.

1.8  Definition of Terms

(i)   Examination: the act of looking at or considering something very carefully; a close look at something especially to see if there is anything wrong or to find the cause of a problem.

(ii)    Nexus: a complicated series of connections between different things. A connection or link, a connected group or series.

(iii)   Mens rea: the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused, refers to criminal intent  moreover, it is the state of mind indicating culpability which is required by statute as an element of a crime.

(iv) Defence: the act of protecting something or somebody from attack, something that protect something or somebody from attack. A legal device employ for criminal exculpation.

(V) Provocation: action or speech that makes someone annoyed or angry, especially deliberately. Testing to reflect a particular response or reflex.

1.9 Literature Review

            Professor Cyprian Okonkwo[8] is one writer whose works greatly enhanced the research. In his book Criminal Law in Nigeria[9], he examined the mental element of offence – mens rea- (guilty mind), and how the doctrine can contribute to the development of Nigeria judicial system[10]. Of immense value to this work is the exposition of Chapter three (3) of the book. The chapter clarified the different constituents of mens rea in Nigeria law and the general law.[11] In his discourse of the meaning of the doctrine of mens rea, Okonkwo and Naish rightly observes that there is a conflict of judicial and academic opinion on the question of introduction, interpretation and the application in Nigeria and other jurisdictions[12]. He concludes that the preponderance of opinion appears to suggest that it is[13].

            Okonkwo’s opinion is two fold and immense practical relevance to the subject matter. Firstly, he opines that much time can be devoted to the subtleties of trying a priori to define an ‘’act’’ and to distinguish it from a consequence, also in case preventive detention in Ghana and some other countries is a serious inroad on this principle. Indeed it goes further than punishing intention.[14] This principle is not made explicit neither in code nor, as yet, in Nigerian cases, and these principles can often be extracted with difficulty as attempted rationalizations of the law. The law is not usually as rational as academic works make it appear[15].But the remedy lies with the legislature and not the courts.[16]

            Chukkol, K. S.[17] is another writer whose work aptly captured the thrust of this research. In his book   Law of Crimes in Nigeria [18], he discussed extensively on the defence of provocation, its legal constituents under the Nigerian criminal law[19]. His exposition particularly featured abridged adumbrations on English Common Law, Nigeria penal code and similar jurisdictions, as well as the origin and meaning of the doctrine. The learned author’s work also provided an overview of the application of the doctrine under the penal code. His analysis is significant for the plethora of legal authorities relied upon[20].

            Another work of immense importance is that of  Barrister John Ifeolu Koni[21] in Appreciating Criminal Law in Nigeria[22].This work dealt with the meaning of means rea. Concurrence of the physical and mental elements, voluntariness of conduct. The learned author submits that, there is yet no legislative explanation as to the basis for the imposition of strict liability in respect of certain offences.

            Koni explained the scope and the application of the doctrine under consideration[23]. In so doing, he points out that this doctrine emanated from English rules[24] . He aligns with Professor Okonkwo in observing that the doctrine has generated a lot of controversy with respect to its application. He maintained that some writers argue that it is applicable while others are of the contrary opinion[25].

            M. Jefferson’s comprehensive work on the Criminal Law[26] is a rich source of information on issues related to mens rea and provocation. According to the learned author, mens rea or the mental element in crime is one of the most important concepts of substantive Criminal law. The book considers such relevant issues like the variation in the actual term of mens rea from crime to crime. The book also consider genera forms of the doctrine of mens rea including negligence, considers several problems relating to the doctrine such as the so called doctrine of transferred malice and contemporaniety or concurrence , whereby he stated that in English law both must coincide in time[27]. He opines that the term is fraught with greater ambiguity[28]. His exposition on the imprecision on the actual application of the doctrine, is on the inability to describe the state of mind of the accused; if he has a defence such as prevention of crime[29]. The book considers such relevant issues as the absence of mens rea, if as a result of provocation the accused did not forsee the consequences of his action[30].

            G. Williams’  Textbook of Criminal Law[31] is also of importance. The book deals with, the definition and punishment for murder, distinction between murder and manslaughter[32] . He is of the opinion that the requirement for both of them are the same except in respect of fault element and mitigating circumstances.[33]

            However, on the issues of liability, there is a plethora of literature. Of immense relevance to this research are the works of Ashworth, A[34], Aniedi Ikpang[35], K. Ikenga[36] , D.Odigie [37]. The article by Ashworth[38] dwell on the scope of criminal liability; the scope of contention: omissions and exculpation. His article argued that the proper examination of intention that warrants culpability will douse and assuage the injustices suffered by a culprit whose intention did not concur with the act when the offence was committed. In his discourse of mental element and the principle of culpability, the writer is of the opinion that:

            Where a charge of murder is alleged, the accused must have performed

            The actus reus of murder and have had malice after-thought. If there is

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