"On the second limb of the appellant's claim of provocation, wherein the appellant contended that he lost control over his emotions when he saw that his brother Chinaza was shot by the police. It is trite law that for any act to constitute provocation, it must be shown to have arisen from the injured party who is the victim of the retaliatory attack. See the case of Idemudia v. State (1999) 7 NWLR (Pt. 610) 202 where the Supreme Court, per Katsina Alu, JSC, held as follows:
"It is settled law that provocation offered by one person cannot be a ground for killing another who did not offer such provocation. See Omeninu v. The State (1966) NMLR 356: Ukwuenyi v. The State (1989) 4 NWLR (Pt. 114) 131 at 148." See also the case of Biruwa v. The State (1992) 1 NWLR (Pt. 220) 633. In the instant case, the appellant's brother was allegedly shot by one of the policemen who came to effect the arrest of the appellant's father (PW4) and not the deceased, if indeed there was provocation in this circumstance, it should have been directed at the police officer who shot the appellant's brother and not at the deceased.
In the premise, I do not share the contention of the learned senior counsel for the appellant, that the defence of provocation availed the appellant in this case. Therefore, this issue is also resolved against the appellant."
Per OREDOLA, J.C.A.IN EZEKIEL v. STATE CITATION: (2018) LPELR-43984(CA)
"Provocation was defined by His Lordship, Adio, JSC, in the case of Akpan v. State (1994) 9 NWLR (Pt. 368) 347 as "an act or series of acts done by the deceased to the accused to make the latter for the moment not master of his mind". In essence, provocation is an act or series of acts perpetrated by the injured party (usually the deceased) to the accused person or his family or close relations, that is capable of making the accused to lose control over his anger and unleash the same on the injured party. The purport of this defence of provocation is that, the accused person admitted to have in fact committed the offence he was charged with, but he contended that the act was done when he momentarily lost control over his anger. See the case of Uraku v. The State (1976) 6 S. C. 128; Ofoha v. The State (1976) 1 SC30 and Ejionwu v. State (1995) 3 NWLR (Pt. 386) 640. It is the duty of the accused person to establish the defence of provocation, and he is required to do so on positive and credible evidence. See Edoho v. State (2010) 14 NWLR (Pt. 1214) 651. To successfully rely on this defence, the accused person must establish the following elements: 1. The act of provocation was not instigated by the accused person. 2. The act of provocation was done in the heat of passion that is, the act was done before there was time for him to cool off. 3. The loss of self-control was reasonable 4. The acts(s) of retaliation was proportionate to the provocation. See Edoho v. State (supra); Okonji v. State (1987) 1 NWLR (Pt. 52) 659 and Uraku v. State(supra)."
Per OREDOLA, J.C.A. IN EZEKIEL v. STATE CITATION: (2018) LPELR-43984(CA)
