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May 21, 2018

SELF DEFENCE: The guiding principles of self- defence are “necessity and proportion.”

The Emergence and Proscription of the Indigenous People of Biafra
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Criminal law is one of the most interesting branches of the law. The law that prohibits murder also creates the exceptions, when it is justified to kill. Thus it is quite legal to kill someone in carrying out a sentence of a competent court or perhaps in self defence.

In subsequent edition of law and society we shall be looking at crimes, defences and punishment under our criminal legislations. But I must warn you that the door to what amounts to a crime is never closed. A government may wake up tomorrow and make the collection of rainwater a criminal offence, as it is the case in the arid parts of the United States today. Thus what amounts to a crime depends on legislations. Section 1 of the criminal code simply defines a crime as an Offence.

 

SELF DEFENCE: It is unlawful to kill a human being without justification. Self-defence is a defence of justification.

As a matter of illustration: a farmer returns unexpectedly from his farm and finds a  lazy man named Chuka sleeping with his wife. He is so provoked that he ran back to the farm to pick his gun, returns and shoots his wife as the villain had escaped. He searched the Village for Chuka, who had slept with his wife and towards the evening he found him at his hideout. Chuka was now also armed with a Dane gun as he’d heard that the farmer was out to kill him with a gun. On sighting Samson, the farmer, Chuka,  agitated shot him as he approached his hideout, out of fear of imminent death. Samson did not die immediately but was badly wounded but pleaded the defence of provocation in the killing of his wife months later. Two months after he recovered from his gunshot wounds, Samson was indicted before a High Court for the murder of his wife, Victoria and chuka with the attempted Murder of Samson. Three months later, Samson died and the indictment of Chuka was changed to Murder to which, Chuka pleaded Self defence. Examine the defences available to these parties, if any.

It is clear that whilst Chuka may avail himself of Self defence, Samson cannot avail himself of the defence of provocation. At the point Samson caught his wife in another man’s arms, if he had shot either of them in the heat of passion, the defence of provocation would have held. But rather, he went back to the farm and picked his gun by which time the heat of passion must have cooled drastically. So the shooting of Victoria was cold blooded murder and did not occur under the heat of passion in which he would have lost ‘control of his senses’ amounting to provocation.

 

These Issues came up for consideration in Adeyeye V State (2013) Vol 218 LRCN pt 1.

 

Facts of the case:

The Appellant and the deceased had a common Boundary demarcating their farms over which they had disagreements in the course of which the deceased provoked, pointed his gun at the appellant who knocked it off his hand. There was a physical struggle in which the deceased gained the upper hand and the appellant not knowing what else to do strikes the deceased on the neck with his cutlass and buried him .The autopsy report showed that the deceased had died from the blow sustained from the appellant which he claimed to have done in self defence. He was convicted and appealed to the court of appeal which upheld his conviction. Thereafter he appealed to the Supreme Court which stated the requirements for the establishment of self- defence and provocation:

On the guiding principles for self defence and on when the defence is available to an accused person:

According to the court, the guiding principles of self-defence are ‘necessity and proportion.’ The court must first establish that the defence of self defence was necessary and that the injury inflicted was proportionate to the threat offered, or was it excessive?

If however the threat offered is disproportionate with the force used in repelling it and the necessity of the occasion did not demand self defence, then the defence cannot avail the accused.

 

According to the Court in Adeyeye’s case supra:

For the defence of self-defence to avail an accused person, the nature of the assault, on him must be such as to cause him reasonable apprehension of death or grievous harm. The extent of force which could be acceptable as a defence, “must be from the belief on reasonable grounds that death or grievous harm was the only last resort that must be used as a defence.”

There is however a standard required by the law because the legal right to kill cannot be made dependent on the temperament of or phlegmatic nature of the individual killer.

The law insists on the standard of a reasonable man.

 


 

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