By: Peculiar A. Okoye
Introduction
Self-defence is the protection of oneself from an unprovoked and unlawful attack using reasonable and necessary force. The force used must not be excessive and must be proportionate to the threat faced. It is an absolute defence: where a person reasonably believes that they are in imminent danger of death or grievous harm, they are justified in using force, even deadly force to protect themselves.
The defence is based on the principle of “kill or be killed.” The defendant must have reasonable grounds to believe that his life was in serious danger and that there was no other means of escape or protection. By raising self-defence, the defendant admits the act that caused the death but claims it was justified to preserve his own life. The degree of force used is relevant only in assessing whether the belief of imminent danger was reasonable; once that is established, the act is justified in law[1].
Nnamani JSC[2] stated that the law will excuse a killing where the defendant had reasonable grounds to believe that his life was in danger and that killing was necessary to preserve it. However, this belief is tested objectively that is, against the standard of a reasonable person. The force used in self-defence must be proportionate to the threat faced. The Court emphasized that an overly nervous or excitable person who reacts to a minor assault with an unreasonable belief of imminent death or grievous harm cannot rely on self-defence. The right to kill in self-defence does not depend on the individual’s temperament, whether timid or courageous. Instead, the law applies a single objective standard, that of the reasonable person
What is the Consideration of Self Defence?
Where the issue or defence of self-defence arises, the defendant’s failure to retreat when it is possible to retreat and when it is also safe for him to do so, is a factor that should be put into consideration and taken into account in determining whether or not it is necessary for the defendant to use such force and if that force was reasonable in such circumstances[3]. The Criminal Code[4] provides that a person who is unlawfully assaulted and has not provoked the assault may use such force as is reasonably necessary to effectively defend himself, provided the force is not intended, and is not likely, to cause death or grievous harm. However, where the assault creates a reasonable apprehension of death or grievous harm, and the person believes on reasonable grounds that he cannot otherwise preserve himself, he is entitled to use such force as is necessary for his defence, even if it results in death or grievous harm.
An essential element of the defence of self-defence is that it involves a careful process of reasoning guided by the principles of necessity and proportionality. The defendant must satisfy the court that he had reasonable grounds to believe his life was in imminent danger and that the action he took was the only available means of preserving it. This is judged by an objective standard which is that of a reasonable person. In determining whether the defence succeeds, the court will consider factors such as whether the force used was proportionate to the threat faced, the circumstances in which the force was applied, and the part of the body struck in the course of self-preservation.[5]
There is a notable 2021 pronouncement of the Supreme Court and the facts of the case in Abimbola v State[6] The facts are thus; the appellant was a police officer sent to the scene of the crime to arrest such suspected criminals. In the process, he shot and killed the deceased. The trial court and the Court of Appeal convicted the appellant f murder and sentenced him to death. However, the Supreme Court where there were two dissenting judgments and three majority decision, the majority decision affirmed the decision of the trial court and stated that the defence of self-defence cannot avail the defendant as PER ODILI JSC (as she then was): stated that the defence of self-defence is not an open ended one to be flashed when a defendant has nothing to say to justify the killing of another human being. However, EKO, J.S.C and SAULAWA, J.S.C opined that the Appellant pleaded that “as he was trying to arrest him, the deceased came out with a short gun from the house and pointed the gun at him and there were holes in his uniform and he was then reloading his gun when he knew his knife was in danger and there was no other means to defend himself than to use his firearms. He shot him, then he fell. Further stating that the defence of self-defence is available to him. When the attack on the defendant causes him reasonable apprehension of death or grievous harm to his person, the defendant is justified in killing his assailant and such killing, in self-defence, is not an offence.
What are the Ingredients of Self-Defence?
For such defence to avail a defendant, he must ensure and establish by evidence by credible evidence that he was so endangered by the act of the assailant that the only means of escape from imminent death was to kill the assailant. In order to succeed in such a defence, the defendant must show the following:
- That the nature of the attack by the assailant was such as to cause a reasonable apprehension of death or grievous harm to the defendant.
- That the defendant in fact apprehended death or grievous bodily harm.[7]
The onus is always on the prosecution to disprove the defendant’s defence and not on the accused to establish his plea. Thus, the defence will only fail where the prosecution shows beyond reasonable doubt that what the defendant did was not done by way of self-defence.[8] The defence of self-defence, where successfully established, is a complete answer to a charge of murder or manslaughter. To rely on it, the defendant must show that his life was in such imminent danger by the act of the deceased, that killing was the only reasonable means of preserving it. He must also demonstrate that he did not provoke or seek the fight and was willing to withdraw if possible.[9]
Every person has the right to defend himself against an unlawful attack. Accordingly, even where the prosecution proves its case beyond reasonable doubt, the law recognizes self-defence as a complete justification that exonerates the defendant. A successful plea of self-defence negatives the existence of an offence. Therefore, where a person kills another in the course of defending themselves from unlawful violence, the act is excused and does not amount to murder, manslaughter, or culpable homicide.
Analysis of Apex Court Decisions on Self Defence?
- Instances where the Appeal was dismissed?
In Nwokearu v. State[10], the Appellant was a soldier who had a dispute with sharing of property of family land, while the deceased was demanding that the appellant’s father release their own share of land, amidst the argument, the appellant emerged from his room with a dagger and stabbed the deceased on his chest. The Supreme Court upheld the conviction where the force used was excessive by stating that the appellant who is a trained soldier armed with a dagger, who attacked and killed an unarmed and defenceless civilian, who did not in any way attack him, could not rely on self- defence. He was not defending himself from anything or anyone.
In this case, the Apex Court upheld the judgment of the Court of Appeal and the trial court on the basis that there was no established fact that the appellant was attacked first in any way by the deceased to have warranted the use of the kind of force the appellant used on him, which led to his death. The defence of self-defence had no legs to stand on.
- Instances where the Appeal was Allowed?
In Kwagshir v. State[11], The appellants’ goats often grazed on their farm. One morning, the deceased killed one of them, and the appellants’ father complained to the deceased’s brother that six goats had been killed. PW1, the deceased’s mother, testified that the appellants cut the deceased three times with a cutlass. The 1st appellant, however, stated that after being stabbed in the hand, he stabbed the deceased while struggling to seize the knife and escape.
The Supreme Court held that the medical report showed only one deep chest wound, supporting the 1st appellant’s account and discrediting PW1, PW2, and PW3 on the number of injuries. It further held that the 1st appellant’s act, even if shared in common intention with the 2nd appellant, did not amount to an offence.
The Supreme Court found the appeal meritorious, set aside the decisions of the lower courts, and acquitted and discharged the appellants.
Also, In Aminu v. State[12], The appellant killed the deceased farmer with an axe during a fight on PW1’s daughter’s farm. He claimed the deceased first attacked him with a machete. PW2 and other prosecution witnesses confirmed that the appellant had machete wounds and there were clear signs of a struggle.
The trial court convicted him and sentenced him to death. The Court of Appeal reduced the conviction to manslaughter on grounds of provocation. However, the Supreme Court found strong evidence that the appellant had been severely attacked and acted in self-defence. It held that the lower courts failed to consider these extenuating circumstances, allowed the appeal, and acquitted and discharged the appellant.
Analysis of Sunday Jackson V. The State’[13] Decision on Self Defence?
The Appellant was arraigned on a charge of culpable homicide punishable with death. in January 2015, in a bush in Adamawa State, the Appellant was alleged to have caused the death of Ardo Bawuro, a herdsman, by stabbing him twice on the neck, causing his death. The Appellant’s confessional statement was that he was cutting grasses in the bush when the deceased attacked him after losing sight of some persons, he was pursuing for allegedly killing his cattle. The deceased attacked the Appellant in frustration and tried to stab him with a dagger. During the struggle the Appellant seized the dagger and used it to stab the deceased three time on his throat resulting in his death. The Appellant elaborated in court that he was working on his farm when the deceased arrived with his cattle, inquiring about certain people. When the Appellant denied seeing them, the deceased drove his cattle onto the Appellant’s farm. When the Appellant attempted to drive away the cattle, the deceased attacked him with a knife. The Appellant claimed he ran and shouted for help, but was stabbed by the deceased on the back of his head and on his leg, that’s when he managed to seize the knife from the deceased, who picked up a stick, the Appellant then stabbed the deceased who died. The Trial Court and the Court of Appeal rejected the plea of self-defence, convicted and sentenced the Appellant to death by hanging.
The Supreme Court stated that there was an opportunity to retreat after he disarmed his attacker, and therefore there was no necessity to inflict the fatal wounds on the deceased. The Apex Court further held that once the Appellant had taken the dagger from the deceased, the immediate threat had been neutralized. Thus, the stabbing of the deceased in the throat multiple times was not reasonably necessary self-defence; stating that the Appellant’s response was excessive and disproportionate, negating the defence of self-defence. The Supreme Court upheld the death sentence imposed by the Court of Appeal and the trial court. It ruled that the lower court were correct in finding the defence of self-defence unavailable on the evidence, and that the elements of self-defence were not fully proven.
However, Helen Ogunwumiju JSC dissented, and in her view, the facts showed that the Appellant acted in genuine self-defence and did not use excessive force beyond what was necessary in the circumstances. She would have allowed the appeal, acquitted the Appellant and recommended he be considered for executive clemency. Her views emphasized that expecting a person that has been stabbed to retreat or carefully assets proportionality is not reasonable nor does it in any way reflect a real human behavior under4 attack stating that the Appellant acted on instincts to preserve his life because precisely the law of self-defence is designed to protect.
Critique
The Supreme Court held that the force that Jackson used was excessive and that once the threat was neutralized after he had disarmed the attacker, he was no longer in imminent and immediate danger, therefore, the apex court held that the killing was not justified as self-defence. This interpretation has generated significant controversy in legal circles. The Supreme Court applied an overly, mechanical and objective standard for proportionality expecting the Appellant to flee after disarming his attacker which does not align with human reality in violent confrontations. This critique holds that a person under attack cannot be expected to stand back calmly and assess as escape route in the heat of a life-threatening struggle.
The Penal Code[14] provides that where a person uses force in self-defence but exceeds what is reasonably necessary, the offence may be reduced from culpable homicide punishable with death to manslaughter. The Supreme Court failed to properly consider or apply this statutory mitigating provision. This judgment reveals structural flaws in our criminal justice system. The right to life is guaranteed, and self-defence is implicitly protected as part of this right. The outcome of this case undermines the constitutional value by punishing someone who acted instinctively to preserve his life. The judiciary ought to interpret self-defence norms in light of human psychology and violent reality we face as human beings especially the common attacks faced in those rural areas. This case has triggered calls for executive clemency and review of justice practices, reflecting concerns that the justice system may be inaccessible or unfair to vulnerable citizens. A person defending himself cannot be expected to weigh “to a nicety” the exact measure of force required in the heat of the moment.
This case is a key reference in our Nigerian Criminal Law on self-defence especially on whether and when the opportunity to retreat affects the availability of the defence. This judgment to me, applies an overly technical standard to human reactions in violent encounters, but the Supreme Court’s majority decision remains binding unless overturned or revisited. Even when, the Supreme Court accepted that the Appellant was initially attacked by the deceased with a knife. This case portrays that even if you are attacked, self-defence will only protect you if your response is reasonable, necessary and proportionate to the threat. Once the threat cease, any further use of lethal force can nullify the defence.
Recommendation
Courts ought to balance legal principles with practical violent confrontation, because self-defence cases must be applied with caution and context and there is need for clearer standards and stronger protections for genuine self-defence claims. The law should accommodate the realities of sudden violence and physical attacks when someone comes in contact with these assailants. The court should see that reasonableness is judged from the perspective of the defendant at that time as he is the one faced with the attack and the violence. It is not the law that a person threatened must take to his heels and run in a dramatic way. The person threatened need not runaway but he should show that he did not want to engage in the fight. Where the circumstances of the unprovoked attack were sudden and unavoidable and the defendant cannot escape the probable fight due to where he was when the unprovoked attack began and escape was impossible, it is only reasonable for him to defend himself. A person’s retreat with safety is a factor to be taken into account in deciding whether his conduct was reasonable, as his willingness to temporize or disengage himself before resulting into force. The Courts should make findings on whether the defendant had such opportunity to retreat with safety and question whether the defendant had any of such opportunity to retreat with safety.
Conclusion
A man is entitled to use such force as is reasonably necessary to defend himself against an unlawful attack especially when the defendant was unlawfully attacked and the attack was imminent, the force used was necessary and the force was not disproportionate. Self-defence is a complete defence where the defendant reasonably apprehends death or grievous harm and acts to repel that danger, such danger in a strict sense must not be imaginary and such force must relate directly to preventing the harm. Self-defence will fail where retaliation continues after threat has stopped but danger is still around the corner, if evidence shows revenge rather than protection, the defence collapses. A man is entitled to defend himself from unprovoked assault from which he was in an apprehension of possible death or great violence to his person likely to result to grievous bodily harm, that he should effectively defend himself with any weapon available. An essential feature of the defence of self-defence is that it involves a process of reasoning, the guiding principles being necessity and proportion; meaning 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, meaning if the force used was proportionate to that used by the attacker, like the circumstances in which the force was used and the part of the body hit in self-preservation by the defendant.
[1] Baridan v. The State (1994) 1NWLR (pt. 320) 250
[2] Laoye v. State (1985) 2 NWLR (pt. 10) 832.
[3] Omorege v. State (2004) LPELR-12494 referred to p. 447, paras C-D
[4] Section 286.
[5] Chukwu v. The state (2012) LPELR-9829 SC
[6] (2021) LPELR-12494 referred to p. 447, paras C-D
[7] Owhoruke v. C.O.P (2015) 15 NWLR (pt. 1483) 557, Uwagboe v. State (2008) 12 NWLR (pt. 1102) 621
[8] Baridam v. State (1994) 1 NWLR (pt. 320) 252.
[9] Stephen v. State (1986) 5 NWLR (pt. 46) 979, Baridam v. State (1994) 1 NWLR (pt. 320) 252.
[10] (2013)16 NWLR (pt. 1380) 209, (2013) LPELR -20642.
[11] (1995) 3 NWLR (pt. 386) 653
[12] (2019) 7 NWLR (pt. 1672) 483
[13] LPELR-80692 (SC)
[14] Section 222(2)
Peculiar A. Okoye,
Associate,
Chinedu G. Udora & Co.