An Examination of Self-defence and Its Implications under the Nigerian Criminal Law – By O. M. Atoyebi, SAN FCIArb. (U.K)

CONTRIBUTOR: LILIAN EKU

INTRODUCTION

The offences of Murder and Manslaughter remain grave offences globally, and more particularly in Nigeria, they have been criminalised under sections 316 and 317 of the Nigerian criminal code and 220 of the Nigerian penal code. However, when charged with such offences, several defences can be pleaded upon arraignment, including self-defence.

Self-defence is the process of defending oneself from an assault. It is typically done by inflicting pain, injury, or death on the assailant to protect oneself. Self-defence is based on legislation that permits individuals to counteract potentially harmful attacks from aggressors in situations they believe could result in severe injury or death[1]. It’s seen as the right an individual has to protect himself, his property, or another person from suffering harm.

Ordinarily, the offence of murder is a capital offence, but self-defence remains a very important right that justifies an individual’s actions of taking the life of another person in the prevention of an intended imminent harm to be caused by such person.

Not all circumstances allow for a swift complaint to be made to the appropriate authorities for the prohibition of an assault or harm, as the damage might appear imminent such that if an action is not taken on the spot, the harm caused might not be capable of being undone or remedied, hence the permissible right to protect oneself by resisting violence with violence subject to certain limits. The criminal code provides that:

“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 an effectual defence against the assault:

Provided that the force used is not intended and is not such as is likely to cause 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 ground, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”

Self-defence can also be used as a defence for the use of reasonable force in the protection of one’s property from a third party.

Definition of Self-Defence under the Nigerian Criminal Law

The Court of Appeal, in the case of EKPOUDO v. STATE[6], defined self-defence to be ;

“The use of force to protect oneself, one’s family, or one’s property from a real or threatened attack. Generally. A person is justified in using a reasonable amount of force in self-defence he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger.”

The decision of the court in the above case has several statutory backings, which include the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Nigerian Criminal Code, and the Nigerian Penal Code.

The 1999 Constitution of the Federal Republic of Nigeria (as Amended), being the grand law, provides in section 33(2)(a) that;

“A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by the law, of such force as is reasonably necessary-) for the defence of any person from unlawful violence or for the defence of property;”

This further affirms self-defence as a constitutional right, available to a person who finds himself in any circumstance that warrants the use of violence as a defence.

Also, Sec 32 (3) of the Criminal Code[9] provides that:

“A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances(3) when the act is reasonably necessary to resist actual and unlawful violence threatened to him, or to another person in his presence;”

This statutory provision was further expatiated in the case of Uwaekweghinya v.The State where the Supreme Court held that;

“Where a person kills another in defence of himself, such a killing is excused, and it does not amount to manslaughter under the Criminal Code or culpable homicide not punishable with death under the Penal Code. The defence of self-defence is a complete defence under the Criminal Code and the Penal Code, and a successful defence of self-defence leads to the discharge and acquittal of the accused person.”

Furthermore, the Penal Code used the term “private defence” rather than the term “self-defence” but shares a similar stance to that of the Criminal Code. [11]

Elements of Self-Defence

The Supreme Court has held in Rasheed Aminu v. The State that for self-defence to be successfully proven, 3 necessary elements must be conjunctively present at the time of violence, which are:

1. There must be reasonable apprehension of death or grievous harm;
2. It was necessary to use force at that time.
3. The force used by Defendant must be proportionate to the force used or imminently threatened against him and reasonable in the circumstances.

Types of Self-defence

There are three (3) major types of self-defence recognized under the Nigerian law, which are;

1. Defence of person [13]
2. Defence of property [14]
3. Defence of others

By virtue of Sec 286 & 287 of the Criminal Code, a person can exercise self-defence against a third party where the circumstances necessitate. Sec. 289 of the Criminal Code then further declares it lawful for a person who is in peaceable possession of a movable property to use reasonable force to stop any trespasser from taking such property away from him, provided he doesn’t cause harm to the trespasser.

Conditions for Justifying Self-defence

Self-defence as a defence to criminal liability is one of the hardest defences to prove. The defence is so powerful that if successfully proven is enough to escape liability. Hence the rationale behind the strictness of proving such. The standard to be proved is that of a reasonable man. Self-defence is an absolute defence to the charge of murder. Self-defence assumes that the defendant not being the first to assault another, was attacked so ferociously that the defendant feared imminent loss of his life and used every means at his command at the time to defend himself. There must be proof that the defendant tried to flee or withdraw from the violence but was unable to do so, thereby having no other reasonable means than to resist violence with violence.

Implication of Self-defence Under Nigerian Criminal Law

The court in the case of Okorodudu v. The State,[15] held that when a plea of self-defence is successfully raised and accepted by the court, the verdict is an acquittal of the charge of manslaughter or murder. The implication of Self-defence is different from that of the defence of provocation. Where the defence of provocation is successfully proven, a charge of murder can be mitigated to manslaughter, or from culpable homicide punishable with death to culpable homicide not punishable with death. However, the implication of the defence of self-defence is a total acquittal.

Conclusion

Due to the effect of self-defence upon being successfully proven, which is an acquittal, it appears difficult to be proven. The court must be satisfied that all 3 ingredients of self-defence has been conjunctively proven beyond a reasonable doubt for such defence to be accepted by the court.

However, self-defense/private defence is an important right of an [16], which allows a person to prioritize his life when faced with any imminent threat of death, grievous harm, or loss of peaceful possession of property, and not an opportunity to take laws into one’s hands. Where there is no imminent threat of death or grievous harm, and the force used by the accused is not proportional to the threat, then self-defense cannot avail such accuser.

REFERENCE

Self-defence | Definition, Rules & Examples available at https://study.com/learn/lesson/self-defense-laws-examples.html accessed on March, 2025. ↑

Section 32(3) Criminal Code CAP C38 LFN,2004; Section 59 Penal Code LFN,2004 ). It is also called private defence under the Nigerian Penal Code (Section 59 Penal CodeN, 2004 ↑).

John v The Statete [2012] 7 NWLR (pt. 1299) 336 C.A. ↑

Section 286, Criminal Code CAP C38, Laws of the Federation of Nigeria 2004. ↑

Sections 289, Criminal Code CAP C38, Laws of the Federation of Nigeria 2004. ↑

EKPOUDO v. STATE (2021) LPELR-528

Sec 33(3) the 1999 Constitution of the Federal Republic of Nigeria (as Amended), 286-293 of the Criminal Code, 59-67 of the Penal Code Act. ↑

Sec 33(3) the 1999 Constitution of the Federal Republic of Nigeria (as Amended) ↑

Section 32(3) of the Criminal Code CAP C38 LFN 2004 ↑

Uwaekweghinya v. State (2005) 9 NWLR (PT. 930) 27 SC ↑

59-67 of the Penal Code Act LFN,2004 ↑

Rasheed Aminu v. The State ↑

Section 286 & 287 of the Criminal Code CAP C38 LFN 2004 ↑

Section 289 of the Criminal Code CAP C38 LFN 2004 ↑

Okorodudu v State (2024)) 12 NWLR (P.130, paras. B-D ↑

Sec 33(3) the 1999 Constitution of the Federal Republic of Nigeria (as Amended) ↑

Source: BarristerNG