Factors to Be Considered in the Application of the Defence of Self-Defence

CASE TITLE: ITA v. STATE (2022) LPELR-58817(SC)

JUDGMENT DATE:   8TH APRIL, 2022

JUSTICES:  OLUKAYODE ARIWOOLA, J. S. C.

EJEMBI EKO, J. S. C.

UWANI MUSA ABBA AJI, J. S. C.

MOHAMMED LAWAL GARBA, J. S. C.

ADAMU JAURO, J. S. C.

PRACTICE AREA:  SELF-DEFENCE

FACTS:

The Appellant as the accused with another on 21/8/2008, in the company of 6 others at large, first attacked the deceased at Odoro, Ikpe junction, and subsequently at Ndot Ikpe, where the deceased died from matchet cuts and wounds inflicted on him with rods and stones. He was thereby arraigned before the trial Court for an offence of murder. The Appellant pleaded the defence of self-defence before the trial Court and his defence was rejected. After the trial, the Appellant was convicted and sentenced to death. He appealed to the Court of Appeal and lost, hence an appeal to the Supreme Court.

ISSUES FOR DETERMINATION

The appeal was determined on the following lone issue:

“Whether the lower Court was right to reject the Appellant’s self-defence and affirm the judgment of the trial Court.”

COUNSEL SUBMISSIONS

It was submitted by the learned Counsel to the Appellant that the Appellant was first attacked at a lonely hilly environment with matchet cuts that led to his amputation, which matter was reported to the police twice. Thus, he had no intention to engage in a fight with the deceased. Thus, it was in self-defence that he retaliated in attacking the deceased that led to his death. He submitted that it would be unreasonable to expect the Appellant to wait until they have cut off his neck before he could defend himself. Thus, that the Appellant satisfied the legal ingredients entitling him to self-defence. He cited in support LAOYE V. STATE (1985) 2 NWLR (PT.10) 832, SHEIDU V. STATE (2014) 15 NWLR (PT. 1429) 1.

The Respondent on the other hand submitted that by the eyewitness evidence of PW1 and PW2, the Appellant and others attacked and killed the deceased when unarmed and without provocation, and thus self-defence cannot avail him. He cited AKINLOLU V. STATE (2016) 251 LRCN AT 41.

DECISION/HELD

The appeal was dismissed.

RATIO

1. CRIMINAL LAW AND PROCEDURE- DEFENCE OF SELF-DEFENCE: Factors taken into consideration by the Courts in considering the defence of self defence​

“The talisman the Appellant has presented in this appeal for his exculpation and acquittal is self-defence. For self-defence to be of great avail to the Appellant, there would have been reasonable apprehension of death or grievous harm to him and reasonably believed that the act of killing was necessary for his own protection and not that of an excitable individual killer. The test is objective and not subjective. It is that of a reasonable man and the act which resulted in the killing must be the reaction of a reasonable person placed in similar situation. See Per COKER, JSC, in SUNDAY UDOFIA V. THE STATE (1984) LPELR-3306(SC) (PP. 26 PARAS. C). The simultaneous factors or requirements for self-defence have been laid down to include that:- (a) There was an act of grave and sudden provocation or that he was assaulted by another, (b) he has not provoked the person assaulting him, (c) there was the loss of both actual and reasonable self-control, (c) The retaliation must also be proportionate or the nature of the assault may be one that causes reasonable apprehension of death or grievous harm, (e) he used reasonable force to defend himself, (f) he never intended to kill that person or inflict grievous bodily harm, (g) there would have been no way of escape for the Appellant in the circumstance, and so on and forth as the case may be. All the above elements must co-exist and be within a reasonable time. In determining what should constitute provocation, the Court does not consider the susceptibilities of the accused. The guiding principles of self-defence are necessity and proportion. See OLUBU V. THE STATE (1980) 1 NCR 309 AT 321, Per OGUNBIYI, JSC, in ADEYEYE V. STATE (2013) LPELR-19912(SC) (PP. 27-28 PARAS. C-C).” Per ABBA AJI, J.S.C.

• CRIMINAL LAW AND PROCEDURE- DEFENCE OF SELF-DEFENCE: When defence of self-defence will and will not avail an accused person

“It is trite that the defence of self-defence can only avail an accused person who was the victim of an unprovoked attack which caused him reasonable apprehension of death or grievous harm and who found it expedient at the time to use the force which resulted in the death of the deceased. It is also important that the force used by the accused person is proportionate to the force used by the aggressor. See EGHEGHE V. STATE (2020) 7 NWLR (PT. 1723) 197, IDAGU V. STATE (2018) LPELR – 44343 (SC), ODUNLAMI V. NIGERIAN NAVY (2013) 12 NWLR (PT. 1376) 20.

By the evidence of PW1 and PW2 whose evidence the trial Court believed and relied on, the Appellant herein was the aggressor. He, his co-accused person and other persons at large attacked the deceased. However, PW2 was able to intervene and the deceased escaped on his motorcycle. Undeterred in their resolve to kill or at least cause the deceased grievous harm, the Appellant and his fellow assailants went after the deceased, apprehended him, attacked him with varying weapons and inflicted the ultimately fatal injuries on him. Considering the entire facts and circumstances of this case, the Appellant cannot be availed of the defence of self-defence. See EDOKO V. STATE (2015) LPELR – 24402 (SC).” Per JAURO, J.S.C.