Suit no: SC.304/2017
Legalpedia Electronic Citation: (2020) Legalpedia (SC) 11101
AREAS OF LAW: APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant, a Policeman with 2 other police officers were charged to court for the murder of the deceased who was shot severally to death. The other two police officers were discharged, while the Appellant was convicted as charged and sentenced to death by hanging. On appeal to this court, the Appellant’s contention is that, his defence of self-defence and accident were not properly considered. His case is that the deceased pursued them with a pair of scissors and in fact got him injured and in self-defence, he used his gun to demobilize him. For the plea of accident, he testified that he never knew his gun was on rapid mode when he shot the deceased.
ISSUE FOR DETERMINATION
DEFENCES – WHETHER COURTS SPECULATE OVER DEFENCES AVAILABLE TO AN ACCUSED PERSON
“It is the duty of the court to consider all the defences available to the accused person, even when raised based on the presumption of innocence of the accused person. See Sani V. State (2017) LPELR-43475(SC). However, the law only takes cognizance of such defences that are founded on requirements capable of being objectively tested on the basis of facts relevant to the particular defence. Thus, Courts do not fish for or speculate over defences available to an accused. The facts which constitute such defences must be apparent enough from the evidence on record to enable the Court to consider them. It must, therefore, be reiterated that Courts must not, in the absence of evidence of such defence or defences on record, speculate. The Appellant in the present appeal is only but fishing for defences which cannot avail him or are irreconcilable”. PER U. M.A. AJI, J.S.C
DEFENCE OF SELF-DEFENCE – INSTANCE WHEN THE DEFENCE OF SELF DEFENCE WOULD AVAIL AN ACCUSED PERSON
“On self-defence, Sections 32(3) and 286 of the Criminal Code “provide as follows:-
“32. A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances… (3) When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence. But this protection does not extend to an act or omission which would constitute an offence of which grievous harm to the person or another or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful assistance or conspiracy rendered himself liable to have such threats made to him.”
“286 When a person is unlawfully assaulted, and as not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault.
Provided that the force used is not intended, and is not such as is likely to cause death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence even though such force may cause death or grievous harm.”
It is the law, that the defence of self-defence is open and available only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. It is his entitlement to use and apply 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. However, if the act said to be a self-defence is committed after all danger from the assailant is past and by way of revenge, then the defence will not be available to such an accused person. See Per ARIWOOLA, JSC in Afosi V. State (2013) LPELR-20751(SC)”. PER U. M.A. AJI, J.S.C
DEFENCE OF SELF-DEFENCE – INSTANCE WHEN THE DEFENCE OF SELF DEFENCE WILL NOT AVAIL AN ACCUSED PERSON
“If the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such self-defence, as in the present case, then the defence cannot avail the Appellant. Thus, it is lawful if the nature of the assault on the Appellant is such as to cause reasonable apprehension of death or grievous harm for him to use such force on the deceased that is necessary to defend himself. This does not arise if he is no longer in apprehension of death but rather an unjustified aggressor, who retaliated in a disproportionate manner, then the killing is considered intentional, and the defence of self defence will not avail him. In other words, the guiding principles are necessity and proportion; the force must have been necessary and it must have been reasonable, and the two questions that must be addressed by the trial Court are – (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? In this case, it is clear by the evidence before the trial Court that the answers to the aforesaid questions are in the negative. The defence of self-defence was not necessary, and the 9 fatal gunshots the Appellant inflicted on the deceased, were not proportionate to whatever threat the deceased offered him on that fateful day. The force he used on him was excessive and inexcusable. See Per AUGIE, JSC in Idagu V. State (2018) LPELR-44343(SC). PER U. M.A. AJI, J.S.C
DEFENCE OF ACCIDENT – WHETHER THE DEFENCE OF ACCIDENT CAN AVAIL AN ACCUSED PERSON WHO CARRIED OUT A DELIBERATE ACT
“It is settled that an accused person as in the instant case, cannot take refuge on a defence of accident for a deliberate act even if he did not intend the eventual result. It needs to be stressed that the act leading to the accident must be a lawful act done in a lawful manner. Thus for an event to qualify as accidental under Section 24 Criminal Code (C.C.), it must be a surprise to the ordinary man of prudence, that is, a surprise to all sober and reasonable people. The test is always objective. It must always be borne in mind that Section 24 of the Criminal Code does not deal with an “act” but an “event” and the event within the meaning of the section, is what apparently follows from an act. See Per BAGE, JSC in Adegboye V. State (2017) LPELR-42099(SC)”. PER U. M.A. AJI, J.S.C
DEFENCES – WHETHER AN ACCUSED PERSON CAN RELY ON THE DEFENCES OF ACCIDENT AND SELF DEFENCE IN A CASE
“Instead of the Appellant to be apologetic and seek for mercy or accept his fate, he is busy scrambling for defences like a drowning man looking for any anything to hold unto for safety. This does not operate like that in criminal defences. A man intends his actions and although every available defence is open to him, he cannot pick and dump them the way he likes. To depend and rely on accident in one breath and then jump to self-defence are mutually exclusive and cannot agree or avail the Appellant. Although the two defences are exculpatory where proved, the facts to prove them cannot flow in the same case. This is because the defence of accident is not deliberate, willed or intentional, while that of self-defence is deliberate, calculated and premeditated. In fact, having raised these 2 defences which are mutually exclusive at the same time and in the same case, the Appellant’s case is fatally dead ab initio and sufficient now to knock off this appeal. Per Onnoghen, JSC, in Jimmy V. State (2013) LPELR-20333(SC), explained it further thus:
“I need to state that by the nature of the defence of self defence and accident, they are clearly odd bed fellows; they cannot operate side by side in single case as the facts needed to support one are not the same with the facts needed to establish the other.”
DEFENCE OF ACCIDENT –REQUIREMENT FOR AN EVENT TO QUALIFY AS ACCIDENT
“Now, my understanding of the extant jurisprudence on the defence of accident is this – for an event to qualify as an accident, it must be the result of an unwilled act: an event which occurs without the fault of the person alleged to have caused it or an event totally unexpected in the ordinary course of events, Adelumala v The State  1 NWLR (pt 73) 683, 692; Ogborv State  3 NWLR (pt 139) 484; Thomas v State  4 NWLR (pt 337) 129; Adekunlev State’ (2006) LPELR-107 (SC) 11, E-F”. PER C.C.NWEZE, J.S.C
DEFENCE OF ACCIDENT – NATURE OF THE DEFENCE OF ACCIDENT
“Thus, where an event eventuates from an act or omission independent of the exercise of the will of a person, or where such event is the result of an accident, our Criminal Law does not hold the actor criminally responsible. In a word, an event which is neither intended nor foreseen by the actor is said to be an accident, Oladipupo v State (1993) LPELR -2549 (SC) 19, E-F.
This defence, which is codified in section 24 of the Criminal Code, is exculpatory. In effect, when it avails the accused person, it exonerates him, C. 0. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009); A. G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988); K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); NIALS’ Laws of Nigeria (Annotated) Criminal Justice Administration Vol One (Lagos: NIALS, 2008); M. A. Owoade, Law of Homicide in Nigeria (Ife: Obafemi Awolowo University Press, 1990) 16 et seq, P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) etc; Uwaekweghinya v The State  9 NWLR (pt 930) 227; Oladipupo v State (supra); Ibeh v State  1 NWLR (Pt 484) 632; Akinbisade v State  14 NWLR (pt 1000) 717. PER C.C.NWEZE, J.S.C
CHARGE OF MURDER – DUTY OF COURT TO CONSIDER ALL AVAILABLE DEFENCE IN FAVOUR OF AN ACCUSED PERSON CHARGED WITH MURDER
“The law is trite that where a person is charged with murder, the court is enjoined to consider all available defences that might enure in his favour, as disclosed by the evidence on record. This duty must be carried out whether the accused person raises such defences himself or not. See: Kolade Vs The State (2017) 8 NWLR (Pt. 1566) 60: Nwakwoala & Anor. Vs The State (2006)14 NWLR (Pt. 1000) 663 @ 686 C – F; State Vs Babanqida – John (2013) LPELR – 20590 (SC) @ 15 D-F. This ensures that the presumption of innocence in the appellant’s favour, guaranteed by the Constitution, is fully protected. PER K.M.O.KEKERE-EKUN,J.S.C
DEFENCES – WHETHER THE FAILURE OF A TRIAL COURT TO CONSIDER A DEFENCE CONSTITUTES SUFFICIENT GROUNDS TO UPTURN A CONVICTION
“It is pertinent to note that the mere fact that the trial court failed to consider a defence, without more, is not sufficient grounds to upturn a conviction, unless it is shown that such failure has occasioned a miscarriage of justice. It was held in State Vs Babangida John (Supra), that where the trial court fails to consider such defences, it is the duty of the Court of Appeal to consider them. See also: Ojo Vs The State (1973) 11 SC 331”. PER K.M.O.KEKERE-EKUN,J.S.C
DEFENCE OF SELF-DEFENCE – NATURE OF THE DEFENCE OF SELF DEFENCE
“Self-defence is a complete defence to a charge of murder. If successfully made out, the accused is fully exonerated of the crime. See: Uwaekweghinva Vs The State (20Q5) 9 NWLR (Pt. 930) 227. A defence of self-defence presupposes that the accused person unlawfully assaulted the deceased in the course of preserving himself from death or grievous harm.
Section 286 of the Criminal Code provides:
“286.Where a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault
Provided that the force used is not intended, and is not such as is likely to cause death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use only such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
DEFENCE OF SELF DEFENCE – FACTORS THAT MUST EXIST FOR THE DEFENCE OF SELF DEFENCE TO AVAIL AN ACCUSED PERSON
“For a defence of self defence to avail an accused person, the following factors must co-exist.
(a) The accused must: be free from fault in bringing about the encounter.
(b) There must be present an impending peril or danger to life or great bodily harm, either real or so apparent as to create honest belief.
(c) The accused person must have taken reasonable steps to disengage from the encounter, or make some physical withdrawal.
(d) There must have been no safe or reasonable mode of escape by retreat.
(e) There must have been a necessity for taking life.
See: Odunlami Vs Nigerian Navy (Supra). PER K.M.O.KEKERE-EKUN,J.S.C
STATUTE REFERRED TO: