Do you remember that popular line from Psquare’s hit song? – “Do me, I do you, man no go vex, step on the dance floor, man no go vex…”
Now P-square may have been quite clear, the doing (in the “do me, I do you”) was supposed to be on the dance floor (or maybe so we think). And because we are on the dance floor, abeg, person no go vex. We just drew inspiration from them for our remix – do me I do you, LAW no go vex.
Now, when the idea came up for this piece, we laughed at the idea. But as we ruminated on it further, we thought it would be an interesting topic of discuss. Let’s be clear, we won’t be pulpit thumping[1] here, neither will we go celestial in this write-up. And yes, we used P-Square to get your attention.
But let’s begin.
To start, you should know that there is a difference between a legal wrong and a moral wrong though most times both meet or converge. Something could be morally wrong or reprehensible[2] and it is still not a crime. For example, eyeing an elder would in the average Nigerian society be regarded as morally reprehensible. I mean, even the elder might be tempted to dash you five fingers and shout ‘your real papa’ because you eyed him or her. But it is not a crime. At least not at the time of this writing.
Another example we could draw your attention to is – adultery. Generally, adultery is not one of the favorite things to do a spouse. It is morally wrong. We can largely agree on that. But in the southern part of Nigeria, it is not a crime. In the Northern part of Nigeria, it is a crime – Aoko v Fagbemi (1961) All NLR 400. You see, fact that something is a moral wrong doesn’t automatically make it a crime. This is because of Section 36(12) of the Constitution which provides to the effect that an action is a crime when it is stated to be so (proscribed) in a written law. Therefore, unless and until there is a written law making the morally reprehensible act a crime, in the eyes of the law, it is not a crime and no one can be arrested or prosecuted for it.
Having laid that foundation, let us go a step further.
Now, if someone does something that you consider morally offensive, most times, you might be tempted to plan a revenge or to retaliate. You might face this temptation because of the idea that the person who wronged you deserves some moral retribution for his or her wrong. And you would or should be the one to mete out justice to him or her. In simple pidgin we would interpret this feeling to mean or say – e do me, I go do am back.
Let’s give one example that we will revisit in this piece.
Imagine that your girlfriend, the love of your life and apple of your right intestine, did the unimaginable. She served your breakfast after cheating on you with your best pal. Now that hurts. We feel your pain bruh. Maybe in the kind spirit of ‘doing her back’, you want to leak photos or videos of the intimate times you had with her. In other words, you want to distribute her nudes online. Now – that is where this piece comes in – does the hurtful breakfast served on you, legally justify your leaking her nudes? After all that would be paying her back in her own coin. Keep that picture in mind, we’d be back to this example later on in our discussion.
So, the ‘e do me, I go do am back’ feeling/argument, is it justified in law?
Can you in a court of law rely on the fact that someone hurt you as a defence for your criminal actions against the person? In other words, to what extent can retaliation or revenge bring unwanted legal consequences on you?
That is what we will be discussing.
Let’s start the gist by saying this – revenge is best served cold – but generally, the Law can cook hot soup from it. To say that differently, cold revenge can land you in hot legal soup of trouble. But in very limited cases, the fact that you were provoked and therefore retaliated might partly save you from a portion of legal trouble[3]. We must stress the partly save part of that last sentence. We must also stress the ‘a portion of legal trouble’. This is not to encourage you to retaliate or revenge – read on to learn everything.
Planning crime –
Let’s be clear, planning crime is itself a crime. We’ve explained that in a previous piece. That is the essence of Sections 516 to 518 of the Criminal Code as well as Sections 96 and 97 of the Penal Code which govern the offence of conspiracy in Nigeria.
Taking your time to plan and schedule a proper trashing (beating) of someone who offended you is a crime. Put differently, physically giving your enemy a red eye after careful planning is a crime. Two crimes actually. The Law doesn’t say it like we’ve just described but you can check up on the offence of criminal assault as well as the offence of conspiracy. We have written about this previously, you can check it out here.
Imagine that everyone was allowed to distribute a proper thrashing to everyone who has offended them. We bet even your dear self would have gotten a few kisses from an angry fist.
Self-defense and Provocation: When the Law fit no vex (or maybe vex small)
Remember we have stated that generally, beating up someone who has offended you to show him or her pepper is not lawful. But does this apply to a situation where you are getting beaten (or your life is threatened) and you need to defend yourself?
Remember also where we mentioned provocation and self defence? This is where we will elaborate on them.
Our focus here is the defence of self-defence[4] and that of provocation. We have previously explained in detail what self-defence is – if you want to read more about it, you can click here.
Self defence
Self defence arises when someone’s life (the accused person’s life) was in grave danger and the action he took which led to his assailant’s death was the only available option to save his life. You could liken it to the survival instinct where a man whose life is threatened would intentionally and naturally find a way to preserve it.
Self defence is a complete defence to a charge of murder and is allowed by Section 33(2)(a) of the 1999 Constitution.
Section 286 of the Criminal Code provides:
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault:
Provided that the force used is not intended, and is not such as to cause reasonable apprehension of death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
The law in a sense allows you to ‘do your assailant back’ not simply for the purpose of deliberate and calculated retaliation or revenge but to defend yourself from the assault or attack. So, if it is in self defence, e do me, I do am back might avail you and the Law no go vex. But like we’ve mentioned before, there are a number of facts or considerations that must be present before self defence can come into the picture at all and eventually get the law ‘not vexed’. Read this earlier piece of ours on the issue of self defence.
Provocation[5]
“In the first place, the defence of provocation when raised by an accused person presupposes and amounts to an admission by the accused that the death of the deceased was a result of the act of the accused/appellant”
- Supreme Court in Agu v State (2017) LPELR 41664
What is provocation?
For purposes of our discussion, provocation[6] has been defined as some act or series of acts done by the deceased to an accused person which would cause in any reasonable person, and actually caused in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind.
We must also mention that – the effect of a successful defence of provocation is to reduce a conviction for murder to one of manslaughter – Oko v The State. Provocation is not a complete defence to a charge for murder. In other words, it doesn’t get you off the law’s hook.
“The defence of provocation is raised to whittle down the fiery punishment of the law should the accused be found guilty of murder. It does not absolve him of criminal liability”
- Court of Appeal in BELLO v. STATE (2021) LPELR-56316(CA)
The defence of provocation would also not be available when a person had sufficient time for his passion or anger to cool and after that period he goes ahead to retaliate and, in the process, kills someone (the person who offended him)[7]. In the case of IGWE v. QUEEN (1963) l SCNLR 307 where after the alleged provocative act of the deceased the appellant left the scene to his house, a mile away, and got hold of a matchet with which, on his return, he murdered the deceased. The defence of provocation was held not to avail him. Don’t forget the fact that someone provoked you is no legal justification to hurt another person (a different person from the one who provoked you). Also, whether or not provocation arises at all is always determined on a case-by-case basis.
To benefit from the defence of provocation…the provocation given must be grave and sudden and the retaliation must not be disproportionate to the provocation given.
– Court of Appeal in BAKARI v. STATE (2018) LPELR-46496(CA)
The Law frowns at self help
Generally, the fact that someone did something hurtful to you is no basis for you to take the law into your own hands[8]. In law, we have a fanciful way of describing ‘taking the law into your hands’ – we call it self-help. And the law frowns against self-help.
This position of the law on self help does not displace or detract from all we have already said in respect of self defence and provocation since those defences apply to criminal actions. Self-help applies more in civil relations or situations. For example the attempt by a Landlord to evict his tenant by force or without giving the relevant notices required by law. The tenant may have actually failed or refused to pay his rent (thereby ‘doing the landlord’ in the context of our present discussion) but that does not serve as justification for the Landlord to take the law into his own hands.
Have you seen that sticker? The one that reads “don’t get mad, get a Lawyer”. We suggest you take it seriously and don’t take law into your hands.
Leaking Nudes of an Estranged lover
Remember our breakfast example from earlier on this in article? We are back there again. Section 24 of the Cyber Crimes Act makes the leaking of nudes a crime. To be very clear, the section provides as follows –
(a) Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or
(b) he knows to be false for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act and shall be liable on conviction to a fine of not more than N7, 000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
From the Section, we have just quoted above, you could get arrested and if convicted, jailed or fined for leaking the nudes of the former love of your life (or any other person). Provocation won’t apply here to allow you walk away after leaking the nudes.
Beating up madam heartbreaker is also not an option the law smiles at too. The law on breach of promise to marry might be your consolation. You can read about it here.
Key take aways/Conclusion –
If someone has wronged you, seek proper redress through the law. If the person’s action is a civil wrong, you can sue the person. If the person’s action amounts to a crime, you can report the action to the police for proper investigation and prosecution. Generally, where you take the law into your hands, the defence of e do me, I do am back (revenge/retaliation) may not come through for you. But in limited circumstances acting in protection of yourself or retaliation might be legally allowed. These limited circumstances include where or when the defences of self defence and provocation apply. But like we’ve said, these are pretty slim ropes to walk on.
Hope you enjoyed reading this and you have learned something new[9].
Written by Frederick Nkobowo LLB, BL
[1] Thumping means to strike or beat with or as if with something thick or heavy so as to cause a dull sound.
[2] If someone’s action is reprehensible, it is extremely bad or unacceptable.
[3] Here is what we mean, in limited circumstances, you can rely on provocation (and self-defense) as a defence (or legal justification) for the criminal action you have carried out. But for these defences to come in at all, the action should not merely and only be done as a retaliatory act. Remember, these defences apply only in limited circumstances.
[4] Nature of Self defence in Law – “An essential feature of the defence of self-defence is that it involves a process of reasoning, the guiding principles being necessity and proportion. The person relying on it must be able to satisfy the court that he had reasonable grounds for believing that his life was in danger and that the action he took was the only available option to save his life. The test is objective. Some of the factors the court would consider are whether the force used by the accused person was proportionate to that used by the deceased, the circumstances in which the force was used, the part of the body hit in self-preservation by the accused, among others. See: Chukwu Vs The State (2012) LPELR-9829 SC @ 9 – 10 D -F: Kwaashir Vs The State (1995) 3 NWLR (Pt.386) 651: Omoreaie Vs The State (2008) 18 NWLR (Pt.1119) 464. It is also trite that where it is successfully made out, the defence is a complete defence to a charge of murder. See: Omoreaie Vs The State (supra): Apuao Vs The State (2006) 16 NWLR (Pt.1002) 227 @ 255 – 256 H – A: Baridam Vs The State (1994) 1 NWLR (Pt.320) 250 @ 262
[5] SHANDE v. STATE (2004) LPELR-7396(CA)
“It is settled law that for a defence of provocation to succeed, it must be established by an accused person: (a) That the act relied upon by an accused person is obviously provocative. (b) That the provocative act had deprived the accused of self-control, that is to say, the provocative act is such as to let the accused person actually and reasonably lose self-control. (c) The provocative act came from the deceased; (g) The sudden fight between the accused and the deceased was continuous with no time for passion to cool down, that is, the retaliatory act to the provocation must be shown to be instantaneous to the act reacted against; (h) the force used by the accused in repelling the provocation is not disproportionate in the circumstance. Thus, it must be shown that the retaliatory act to the provocation must be proportionate to the act reacted against. All these ingredients set out above must co-exist to ground a plea of provocation. All these ingredients set out above must co-exist to ground a plea of provocation. In MUSA V STATE (2007) 11 NWLR (Prt 1045) 202 at 219 – it was held that in applying the tests in the defence of provocation, it is of particular importance to- (a) Consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) Take into account, the instrument with which the homicide was effected for to resort in the heat of passion induced by provocation by a simple blow is very different thing from making use of a deadly instrument like a conceded knife, and the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter – See Hassan v State (2017) LPELR 41994 CA.
[6] Meaning of provocation in law – A defence of provocation on the other hand involves the opposite of reasoning. The elements of the defence of provocation are:
(a) The act of provocation was done in the heat of passion.
(b) The loss of self control, both actual and reasonable, That is to say, the act was done before there was time for passion to cool.
(c) The retaliation was proportionate to the provocation…Provocation arises from an act or series of acts done by the deceased to the accused person, which would cause in a reasonable man, and did in fact cause in the accused person at the material time, a sudden and temporary loss of self control, rendering him so subject to passion as to make him or her for the moment not the master of his mind. See: Akalezi Vs The State (1993) 2 NWLR (Pt.273) 1: Stephen Vs The State f!986) 5 NWLR (Pt.46) 978: R V. Duffy (1949) 1 ALL ER 932: Oladiran Vs The State f!986) 1 NWLR fPt.14) 75. Provocation may be verbal or physical or both. What constitutes provocation is a question of fact to be determined based the circumstances of each case. See: Lado Vs The State (1999) 9 NWLR (Pt.619) 369 & 380 F – in Oko v State A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control and acts upon it on the sudden and before there is time for his passion to cool.” Per Sage in Oko v The State . Section 38 of the Penal Code.
[7] In all the cases where the defence of provocation was held to avail the accused, he did so in the heat of passion. Thus, in MOMEH V. STATE unreported: SC. 469/65 of 15th April, 1966 it was held that the accused who did not act in the heat of passion cannot successfully plead the defence of provocation. The defence would also fail if the act of retaliation was done after there had been sufficient time for the passion to cool down. See IGWE v. QUEEN (1963) l SCNLR 307 where after the alleged provocative act of the deceased the appellant left the scene to his house, a mile away, and got hold of a matchet with which, on his return, he murdered the deceased. The defence of provocation was held not to avail him. In this case, if Exhibit A had been believed and acted upon, it would have been a case of the accused, appellant, committing the murder of the deceased in a deliberate and calculated act of retaliation which would have denied him the defence of provocation. See MOMEH v. STATE (supra).
There is, in law, provocation if the victim by his conduct or act (which includes words or action) had incited the accused to impulsively do something harmful or injurious to the former.
The inciting act or conduct of the victim must be such as could cause the accused to lose his reasoning and self-control at the material time and before his passion could cool down; Oko v State
[8] The exceptions include the instances of self defence and provocation we have described already.
[9] Relevant statutory authorities for all we have described so far include – Section 283 of the Criminal Code, Section 38 and 222 (1) of the Penal Code, Sections 193, 194 and 195 of the Criminal Law of Lagos State, Section 36 (12) of the 1999 Constitution, Section 33 (2)(a) of the 1999 Constitution
