Self Defence is a constitutionally guaranteed right for every Nigerian to use reasonable and necessary force for the defence of person and property, from unlawful violence.
However, not all retaliatory force is held to be reasonable and necessary to sustain the defence of self defence.
Hence this article seeks to educate the reader on the following:
- Meaning and Nature of self-defence;
- Statutory provisions of self defence under Nigerian law;
- Ingredients of self-defence;
- Proportion of defence.
1. MEANING AND NATURE OF SELF DEFENCE
The term 'Self Defence' is derived from the Latin term "se defendendo", which means defending oneself. It is the use of force to protect oneself, one's family or property from real or threatened attack.
In EKPOUDO v. STATE(2021) LPELR-52826(CA), self-defence was defined as
"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."
A successful plea of self-defence negates the existence of an offence; so that where a person kills another in defence of himself, such 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.
2. STATUTORY PROVISIONS OF SELF DEFENCE UNDER NIGERIAN LAW
- The 1999 Constitution of the Federal Republic of Nigeria (as Amended)
Section 33 of the 1999 Constitution guarantees the fundamental right to life of every Nigerian Citizen. Section 33(2) (a) provides as follows:
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- (a) for the defence of any person from unlawful violence or for the defence of property;
The corollary of this is that self-defence is constitutionally available to a person who is attacked by another.
- The Criminal Code and the Penal Code
Both the Criminal Code Act, and the Penal Code of Nigeria make elaborate provisions on the defence of self-defence. The provision spans sections 286-293 of the Criminal Code and sections 59-67 of the Penal Code Act.
The Penal code which is operative in Northern Nigeria adopts the term "private defence" rather than the term "self-defence" used in the Criminal Code which is operative in Southern Nigeria. The provisions of the Penal Code on self-defence are substantially similar to that under the Criminal Code This is not implicit in the constitutional provision.
3. INGREDIENTS OF SELF DEFENCE
The ingredients of self-defence refer to the facts and circumstances that a defendant must prove to succeed in a plea of self-defence. These facts and circumstances are distilled from statutory provisions on the subject and decisions of courts over the years.
In the case of MOHAMMED V. STATE (2020) LPELR-50919(CA), the Court of Appeal stated as follows:
"The defence of self defence is clearly a child of necessity. It is a defence that is not pleaded as a matter of course, but one in which the defendant is expected to establish that he was at the time of the killing in reasonable apprehension of death to himself or grievous harm and that it was necessary at the time to use the force which resulted in the death of the deceased in order to preserve his life. As an important aspect of the force used by the defendant must be shown to be proportionate to the force used or imminently threatened against him and reasonable in the circumstances in which it was used. The defense of self-defense, of course is not available where the person attacked used a greater degree of force than was necessary in repelling the attack."
Also, in ITA & ANOR v. STATE (2013) LPELR-21392(CA), the Court held that:
"A man is justified in using against an assailant a proportionate amount of force in defence of himself or other persons who he is under a duty to defend, where he considers his life or such persons lives to be in danger"
From the above judicial decisions and other decided cases, the following elements must be present before a plea of self-defence can avail the Defendant:
- There must be reasonable apprehension of death or grievous harm;
- It was necessary to use force at that time;
- The force used by Defendant must be proportionate to the force used or imminently threatened against him and reasonable in the circumstance.
4. PROPORTION OF DEFENCE
It is without a doubt that one of the elements of self-defence is that the force used by Defendant must be proportionate to the force used or threatened to be used in the circumstance.
The question then is what are the criteria one can measure the retaliatory actions of the defendant to determine whether it was commensurate or proportional to the danger posed by the deceased?
In the case of GEORGE v. STATE(1993) LPELR-1320(SC), the Supreme Court held that:
"Proportionality can be determined by the nature of the weapon used in retaliation, and the obvious disparity in the relative physical strength of the parties."
The defence of self-defence permits a defendant under the threat of death or serious bodily harm, to use force, to defend himself or property from unlawful violence.
However, such force used must be necessary, reasonable, and commensurate to the force used by the assailant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.