Provocation As A Defence To The Crime Of Murder Under Common And Islamic Law

ABSTRACT

Major legal systems across the globe have evolved rules and principles for dealing with various situations. These situations are inclusive of different legal concepts like marriages, inheritance, offences etc. The rules and regulations are either man-made or divine as it exist under the common law and Islamic law respectively. Thus, it is conceivable that different legal system will proffer different ways of dealing with the same legal concept. The offence of murder is no exception in this regard as the common law has its own stipulations that considerably differs from what obtains under Islamic Law. There are certain defences that are capable of mitigating the punishment for the offence of murder, a topical part of which is the defence of provocation. Legal practitioners and academicians practicing under any or both of the legal system will be greatly aided by understanding the nature of the defence of provocation to the offence of murder under the different legal system which hitherto has been viewed as seemingly complex and nebulous. It is against this backdrop, that this project seeks to comparatively discuss the defence of provocation to the offence of murder under the two aforementioned legal system. The juxtaposition is aimed at pointing out the nature, ingredients and methods of proving the defence of provocation to the offence of murder under both system of laws. This research work will critically examine the common law position as encapsulated in the Criminal and Penal Codes and also extrapolate the nature of the defence from the Islamic law point of view. It will also point out areas of similarities and dissimilarities (if any) between provocation as a defence to the offence of murder under common law and under Islamic law.This research work will contribute to the development of legal knowledge by making far reaching recommendations for future execution.   

TABLE OF CONTENTS

COVER PAGE…………………………………………………………………i

ATTESTATION………………………………………………………………  ii

CERTIFICATION PAGE…………………………………………………….. iii

ABSTRACT…………………………………………………………………….iv

DEDICATION …………………………………………………………………. v

ACKNOWLEDGEMENT ……………………………………………………… vi

TABLE OF STATUTES ……………………………………………………… vii

TABLE OF CASES …………………………………………………………… viii

LIST OF ABBREVIATIONS………………………………………………… xii

TABLE OF CONTENTS……………………………………………………… xii

CHAPTER 1

GENERAL INTRODUCTION

1.0.0 INTRODUCTION…………………………………………………… 1

1.1.0 BACKGROUND TO THE STUDY…………………………………  2

1.2.0 AIMS AND OBJECTIVES OF THE STUDY……………………… 4

1.3.0 SCOPE OF THE STUDY…………………………………………… 5

1.4.0 METHODOLOGY……………………………………………………5

1.5.0 DEFINITION OF TERMS…………………………………………… 6

1.6.0 LITERATURE REVIEW…………………………………………….. 7

1.7.0 CONCLUSION……………………………………………………… 15

CHAPTER 2

PROVOCATION AS A DEFENCE UNDER COMMON LAW

   2.0.0   DEFINITION OF PROVOCATION AND DEFENCE ……………17

   2.1.0   NATURE OF DEFENCE OF PROVOCATION…………………19

   2.2.0   ELEMENTS OF THE DEFENCE………………………………    24

   2.3.0   CRIMINAL AND PENAL CODE PROVISIONS ON THE DEFENCE OF PROVOCATION……………………………     34

2.4.0   CRIMINAL AND PENAL CODE PROVISIONS ON THE CRIME OF MURDER…………………………………………………       40

    2.5.0    BURDEN OF PROOF IN THE DEFENCE OF PROVOCATION…50

    2.6.0    EFFECT ON SENTENCING……………………………………… 54

  2.7.0    CONCLUSION……………………………………………………   55

CHAPTER 3

PROVOCATION AS A DEFENCE UNDER ISLAMIC LAW

 3.0.0   INTRODUCTION…………………………………………………… 56

3.1.0   DEFINITION OF PROVOCATION UNDER ISLAMIC LAW ……  56

3.2.0    NATURE OF PROVOCATION UNDER ISLAMIC LAW ……….. 58

3.3.0    PROPHETIC TRADITIONS ON THE DEFENCE OF PROVOCATION…………………………………………………… 62

3.4.0    VALID INSTANCES OF THE DEFENCE OF PROVOCATION … 64

3.5.0    CONCLUSION……………………………………………………   68

CHAPTER 4

COMPARATIVE ANALYSIS OF THE COMMON AND ISLAMIC LAW POSITION ON THE DEFENCE OF PROVOCATION TO THE CRIME OF MURDER

4.0.0    INTRODUCTION…………………………………………………… 69

4.1.0    SIMILARITIES BETWEEN THE COMMON LAW POSITION AND ISLAMIC LAW POSITION ON THE DEFENCE OF PROVOCATION TO THE CRIME OF MURDER…………………………………… 71

4.2.0    DIFFERENCES BETWEEN THE COMMON LAW POSITION AND ISLAMIC LAW POSITION ON THE DEFENCE OF PROVOCATION TO THE CRIME OF MURDER …………………  78

4.30    APPRAISAL OF JUDICIAL AUTHORITIES ON THE DEFENCE OF PROVOCATION UNDER THE COMMON AND ISLAMIC LAWS .83

4.4.0    EFFECTS OF THE DEFENCE……………………………………… 94

4.5.0    CONCLUSION……………………………………………………… 100

CHAPTER 5

GENERAL CONCLUSION

   5.0.0   SUMMARY/CONCLUSION……………………………………… 102

5.1.0   RECOMMENDATIONS…………………………………………… 106

BIBLIOGRAPHY  ………………………………………………………….. 111

ARTICLES IN JOURNALS…………………………………………………. 111

ARTICLES ON THE INTERNET…………………………………………… 112

BOOKS ……………………………………………………………………….