Self defence is one of the commonest defences raised by defendants in a criminal charge bothering on assault, murder and other offences. It is also a recurrent decimal in criminal matters as nearly every accused person will want to rely on the defence.
This work seeks to analyze the defence, with a view to explaining what it is, the elements, when it can be successfully pleaded and the effect of pleading same.
DEFINITION OF SELF DEFENCE : In the case of Braid V. The State (1997) 5 NWLR (pt. 5041) 141 @ 149 SC. The court stated that “the doctrine of self defence posits that a person can act in ways that would otherwise be unlawful to prevent the commission of a crime.” Also, According to Black’s Dictionary 9th Edition, it was defined as “a use of force to protect oneself, one’s family or one’s property from a real or threatened attack.”
In Njoku V. State (1993) 7 SCNJ 36, the court was of the view that for self defence to avail, there must be clear and unambiguous evidence before the Court of trial, that the victim was attacking or about to attack the appellant in a manner that grievous harm or death was possible and he had to defend himself; that the self defence was instantaneous or contemporaneous with the threatened attack; and that the mode of self defence was not greater or disproportionate with the threatened attack. The Supreme Court in Amala V. State (2004) 18 NSCQR 834 was of the view that, “if a man attacks me, I am entitled to defend myself, and the difficulty arises in drawing the line between mere self defence and fighting. The test is this: a man defending himself solely to avoid fighting. Then supposing a man attacks, and I defend myself, not intending or desiring to fight, but still fighting in one sense to defend myself, and I knock him down, and thereby unintentionally kill him, that killing is accidental.”
Generally, a person is justified in using a reasonable amount of force in self defence, if such a person believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger.
It is pertinent to note that what matters most in pleading self defence is the reasonableness of the force used. In order to arrive at the above, the court asks two questions; Was the use of force necessary in the circumstances i.e was there a need for any force at all? And was the force used, reasonable and necessary in the circumstances?
The Criminal Code Act provides for self defence in two ways. Vis-à-vis
Self defence against unprovoked assault ( Section 286 of the Criminal code Act)
Self defence against provoked assault ( Section 287 of the Criminal Code Act)
For the unprovoked assault, the position of the law is that the person so assaulted has a legal obligation to use such force as is necessary to make effectual defence against such assailant. This is, however, not the only effect. The other effect which comes under the proviso in section 286 of the criminal code is that it restricts the person defending himself against any force that might cause death or grievous bodily harm. But where the nature of the assault is likely to cause reasonable apprehension of death or grievous harm and such a person believes he cannot otherwise preserve himself from death or grievous harm, he is legally backed to use any force that is necessary even if it will lead to death or cause grievous harm. In Nkpuma V. State (1999) 9 NWLR (PT. 317) 374, It was held that “it is trite law that where an unprovoked assault causes the victim reasonable apprehension of death or grievous harm, the latter is entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger and this he is entitled to do even though such force may cause death or grievous harm.”
On the other hand, Section 287 of the criminal code, provides for the right of self defence to persons who in all circumstances would be labeled criminals for the initial assault. What this means is that the person who will rely on this section is someone who initiated the assault but somehow found himself at the receiving end of the whole scene. The provision authorizes such an initial aggressor, again on the basis of reasonable ground of belief in the apprehension of death or grievous harm, to use any such force as is reasonably necessary for his preservation from death or grievous harm. However, the law provides a proviso to this section which is that the person who first assaulted must have declined further conflict and quitted it or retreated from it. In essence, the initial aggressor has to decline further conflict and or must have quitted it and retreated from it. The implication of this is that by retreating or quitting further conflict, the initial aggressor becomes a person newly assaulted and only then will he be legally backed in using any such force that is necessary for his self preservation.
ELEMENTS OF SELF DEFENCE
For self defence to avail an accused person, there are some elements or ingredients that needs to be established. In the case of Omoregie V. State (2008) 12 NWLR SC(PT.III), it was held that self defence that will have any impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable.
The court further listed the ingredients/elements of self defence, which include:
* The accused must be free from fault in bringing about the encounter;
* there must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity;
* there must be no safe or reasonable mode of escape by retreat; and
* there must have been a necessity for taking life.
In other to sustain the defence, all the above ingredients must coexist and be established. See also, Nwede V. State (1995) 3 NWLR (PT.384) 385, Nwede V. State (1985) 3 NWLR (PT 13) 374.
WHEN SELF DEFENCE CAN BE RAISED AND THE EFFECT OF A SUCCESSFUL PLEA THEREOF.
Self defence is not one of those defences required to be raised at any particular time. Self defence, unlike Alibi which is required to be raised at a particular time, is therefore one which can be raised at any time and the court is expected to consider it no matter the incoherence therein. Where it is not raised at all, the court is also duty bound to consider it if the evidence led discloses a possibility of it.
The effect of a successful plea of self defence is an acquittal on the charge wherein it was raised. It has been held in plethora of cases that self defence, where it avails an accused person, justifies or excuses by law the act or omission of the accused, thereby rendering him not liable for the offence charged. In other words, where the defence succeeds, the accused must be discharged and acquitted. See the case of Maiyaki V. State (2008) 3 NWLR (PT. 1075); Apugo v. State 15 NWLR (PT. 1002) 227.
It is note-worthy that for self defence to be raised, the accused must admit to the commission of the crime, but for a reasonable reason. See Mgboko V. State (1972) 1 RSLR 19
CONCLUSION: This work explained that Self defence can be divided into 2 segments. The first segment deals with life of an individual and same is divided also into two arms. The first arm deals with self defence that will not result in death while the second arm deals with that which could result in death. Further, the second segment is provoked assault and unprovoked assault. It is to be noted that where a person who was attacked used a greater degree of force than was necessary in the circumstances and thereby caused the death,self defence will not avail him.
Lastly, this work pointed out with respect to this defence that it must be reasonable, necessary and proportionate to the force used.
ABOUT THE AUTHOR
Ikedinobi Uche Emmanuel is a student of the faculty of law, Nnamdi Azikiwe University, Awka, Anambra state. He is a legal researcher and an author.
For knowledge and Justice