WHETHER A DEFENDANT CAN PLEAD BOTH DEFENCES OF PROVOCATION AND SELF-DEFENCE SIMULTANEOUSLY

The defences of provocation and self-defence are recognised defences in criminal law. However, despite their availability to an accused person in appropriate circumstances, the two defences operate on different legal principles and produce different legal consequences. While a successful plea of self-defence may completely exonerate an accused person, a successful plea of provocation ordinarily mitigates criminal liability rather than absolving the accused of the offence.

The above principle was considered by the Supreme Court in the very recent case of IDOWU AJEWOLE v. STATE (2026) 14 NWLR (Pt. 2060) 371, where the Court addressed the question of whether a defendant can rely on the defences of provocation and self-defence simultaneously.

The central issue in the case was whether the two defences, being legally inconsistent, could avail an accused person at the same time.

In determining this issue, the Supreme Court emphasised the distinction between the legal consequences of the two defences and the inconsistency that arises when they are raised concurrently. To this effect, the Court held as follows:

“Whilst self-defence is an absolute defence, a successful plea of provocation has the effect of mitigating the punishment in that, if established, the charge may be reduced from murder to manslaughter under the Criminal Code, or from culpable homicide punishable with death to culpable homicide not punishable with death under the Penal Code. Therefore, a successful plea of provocation would not exonerate the accused or absolve him of liability. In the instant case, it was not in dispute that the deceased died and that the appellant’s action was what led to his death. The appellant, in an attempt to justify his action, relied on the defences of provocation and self-defence. Both defences could not concurrently avail the appellant, as the two defences are legally inconsistent. The appellant was therefore wrong to have relied on both defences.”

The Court further considered whether the two defences could be relied upon together, emphasising their distinct legal foundations. On this, the Apex Court held that:

“The defences of provocation and self-defence are separate defences. Nigerian law does not permit a defendant to rely on the two in the same case, as to do so would be inherently contradictory and inconsistent. One is the exclusion of the other as the two cannot coexist to simultaneously avail a criminal defendant, for a criminal defendant cannot claim to be provoked in taking an action and at the same time allege that he acted in self-defence. While the defence of provocation is one available to a criminal defendant who claimed to have acted irrationally due to the words or action of the victim, the defence of self-defence is available to a criminal defendant that acted rationally and used reasonable force in the circumstance. Thus, even though the court is enjoined to consider all defences available to an accused person, in the instant case, the appellant was wrong to have relied on both defences, but even then none could avail him.”

The above holdings of the Supreme Court demonstrate that the defences of provocation and self-defence cannot simultaneously avail an accused person because they rest on inconsistent legal foundations. A plea of provocation is premised on the loss of self-control occasioned by provocative conduct, whereas self-defence is founded on the justification of using necessary and reasonable force to repel an unlawful attack or imminent threat.

The distinction is also evident in the legal consequences of each defence. Where self-defence is successfully established, it may absolve the accused of criminal liability. Provocation, on the other hand, does not completely excuse the act but may reduce the offence and the corresponding punishment where the applicable legal requirements are satisfied.

The authorities cited in Idowu Ajewole v. State (Supra), particularly Ukpong v. State (2019) 6 NWLR (Pt. 1667) 1 and Kalgo v. State (2021) 10 NWLR (Pt. 1784) 309, reinforce the principle that an accused person cannot rely on mutually inconsistent defences to justify the same conduct.

It is important to note, however, that the duty of the court to consider the defences disclosed by the evidence remains. The inconsistency of the pleas does not relieve the court of its responsibility to evaluate the evidence and determine whether any defence is established under the applicable law.

In conclusion, the case of Idowu Ajewole v. State (Supra) reinforces the principle that the defences of provocation and self-defence cannot concurrently avail an accused person because of their inherent legal inconsistency. The decision highlights the importance of understanding the distinct nature and legal consequences of criminal defences. It further emphasises that while all defences arising from the evidence must be considered by the court, each must satisfy its own legal requirements before it can avail an accused person.

About the Authors:

Rukayya Muhammad Nuhu and Abdulmuiz Olasunkanmi Olaleru are members of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. They can both be reached via +2348122227635 and +2349153869857, respectively.