Legalpedia Citation: (2013) Legalpedia (SC) 11771
In the Supreme Court of Nigeria
Fri Feb 1, 2013
Suit Number: SC. 305/2010
CORAM
PARTIES
OJO ADEYEYE APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The appellant and the deceased who had a common boundary demarcating their farmlands had a disagreement in the appellants’ farm land and a physical fight ensued between them. In the course of the scuffle the appellant struck the deceased on the neck with his cutlass and he died instantly. The appellant raised the defence of self defence at the trial and the court rejected it and proceeded to convict and sentence him as charged. The appellant was dissatisfied with the judgment and consequently appealed to the Court of Appeal and his appeal was dismissed. The appellant has further appealed to the Supreme Court.
HELD
Appeal dismissed
ISSUES
Whether the Court of Appeal was right in affirming the judgment of the trial court to the effect that the defence of self defence was not available to the appellant in all the circumstances of this case?
RATIONES DECIDENDI
MURDER – INGREDIENTS TO ESTABLISH MURDER
MURDER – INGREDIENTS TO ESTABLISH MURDER
“It is well settled that in a charge of this nature, the prosecution must, as a matter of obligation, prove the following three essential ingredients beyond reasonable doubt:
That the deceased died
That it was the act of the accused that caused the death of the deceased.
That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that death or grievous bodily harm would be the probable consequence of that act.” – Per C.B Ogunbiyi JSC
SELF DEFENCE- STANDARD OF PROOF
“The legal right to kill in self defence cannot be made dependent upon the temperament or phlegmatic nature of the individual killer. For those who claim to have exercised this legal right to kill, the law insists upon one standard. It is the standard of a reasonable man. See again the case of Udofia v. The state supra. For the defence to be available and to exclude criminal responsibility the accused must face imminent apprehension of death or grievous harm from the victim” – Per C.B Ogunbiyi JSC
SELF DEFENCE- REQUIREMENTS OF SELF DEFENCE
“The question of self defence, I again repeat, is from all indication an after thought
For the defence to avail the appellant he must satisfy the requirement that:
There was an act of grave and sudden provocation
There was the loss of self-control both actual and reasonable
The retaliation must also be proportionate”
In other words, all the three elements must co-exist and within a reasonable time. In determining what should constitute provocation, the court does not consider the susceptibilities of the accused” – Per C.B Ogunbiyi JSC
SELF DEFENCE – PRINCIPLES OF SELF DEFENCE
“The guiding principles of self defence are necessity and proportion. The two questions which ought to be posed and therefore answered before the trial court were: (1) on the evidence, was the defence of self defence necessary? (2) was the injury inflicted proportionate to the threat offered, or was it excessive? If however the threat offered is disproportionate with the force used in repelling it, and necessity of the occasion did not demand such a defence, then the defence cannot avail the accused.” See R v. Onyeamaizu (1958) N.R.L.R 93. It is also trite that the defence is weakest where the position of the victim is weaker than that of the accused and hence the issue of self defence does not arise; the defence will also not be available” – Per C.B Ogunbiyi JSC
CASES CITED
Ndukwe v. The State (2009) 2 SCM 147 at 167Abogede v. The State (1996) 5 NWLR (pt. 448) 270Nwosu v. The State (1986) 4 NWLR (pt. 35)Ogba v. The State (1992) 2 NWLR (pt. 222)Daniels v. State (1991) 8 NWLR (PT. 212) 715R v Onyeamaizu (1958) N.R.L.R 93Udofia v. The State (1984) NSCC 836, at 856 – 857Palmer v. R (1971) 55 cr. App. C223Olubu v. The State (1980) 1 NCR 309 at 321
STATUTES REFERRED TO
NONE