SELF DEFENCE

Self defence as a form of defence in criminal prosecution has always been considered in terms proportionality to the attack,it is a defence of one’s self or other persons whom one is under a duty to defend against forcible and violent felony, it should be noted that self defence beyond proportionality to the immediate attack which falls to be measured against reasonable apprehension and threat that is wider than the immediate event would have call provocation into play.

This defence will avail a person who had withdrawn or shown no desire to engage in violence before the attack he responds to AUDU V. STATE 2003 FWLR PT 153.

Section 32(3) and 286 of the criminal code allowing reasonable act necessary to resist actual and unlawful violence threatened to a person as well as the use of reasonable force to the assailant to make effectual defence against unlawful and unprovoked assault.

Self defence arises where an accused was encountered by an assailant equal in arms ,where accused in excess of requisite force to repel attack kills, believing harm necessary  in exercise of his right to self defence, defence of  provocation showing that act of accused was done in the heat of passion to cool could avail the accused from murder and reduce offence to self defence AHMED V. STATE 2001 FWLR PT 34.

The law draws a distinction from provocation in the sense that the latter requires that the victim be inflamed, as regards self defence the first reaction of law expects, is fleeing as a mechanism of self-preservation from attack .However the Supreme Court recognises that for an accused to avail himself of this  defence ,he must show by evidence that he took reasonable step to disengage from the fight or make some physical withdrawal but the issue of disengagement depends on peculiar circumstatnces of each case.

In TIJANI V. STATE  it was held that self defence must be explicitly and evidently raised, the onus to proof lies with the prosecution .

The use of reasonable force to protect oneself is allowed in law by virtue of section 7(2) OF Criminal Procedure Act and also Section 33(2)a-b of the Constitution of the Federal Republic of Nigeria.

The prosecution also has to prove accused did not kill the victim in self defence in IBIKUNLE V. STATE 2007 ALL FWLR police were searching for one Nonso in an apartment where he had moved out and some other person was occupant. The police was not aware of these when they sought entry, the occupants refused access and did not emphatically deny he was not Nonso and did not open even after warning shot were fired .The occupants warned the police and threatened to kill any person who attempts incursion. The single shot of the police who entered proved rather fatal rather than merely incapacitate the deceased.

The matter turned proportionality of the use of force even when the deceased was said to have been armed ,where the policeman who got access into the premises of the deceased ,was considered overzealous and extremely careless because he did not follow the alternatives the court believed were opened to the police instead of using force to arrest a suspect at night. He was condemned to death by hanging.

Right to private defence is preventive in nature, hence force used must be reasonable and proportionate to repel attack IJELE IGWOLONO V. THE STATE (1986) CA

Thank you

OYENIKE ALLIYU-ADEBIYI LLB(hons)BL