“Self-defence is a complete defence under the Criminal Code and the Penal Code, and a successful defence of self-defence, leads to the discharge and acquittal of the accused. Where a person kills another in defence of himself, such a killing is excused, and it does not amount to Manslaughter under the Criminal Code or Culpable Homicide not punishable with death under the Penal Code”

In the Supreme Court of Nigeria
Holden at Abuja
On Friday the 17th day of February, 2017
Before Their Lordships
Olabode Rhodes Vivour
Clara Bata Ogunbiyi
Amiru Sanusi
Amina Adamu Augie
Paul Adamu Galinje
Justices, Supreme Court
SC. 450/2014
Between
Peter Ogbu………….. Appellant
And
The State ………….Respondent
Lead Judgement delivered by Honourable Amina Adamu Augie, JSC

Facts
On or about 23rd May 2009, at the High Level Area in Makurdi, a certain Aondogusha Abunka (deceased) and the Appellant (who was 16 years and 6 months old) were embroiled in an argu- ment, which subsequently degen- erated into a fight in a carpentry workshop. While the fight was on, the Appellant took a knife from the carpenter’s workshop and stabbed the deceased on the left side of his chest. He was taken to the hospital where he later died. The Appellant was arraigned at the High Court of Benue State, Makurdi, on a charge of culpable homicide punishable with death. He pleaded not guilty. He admitted killing the deceased, but he put up a defence of self-defence. The trial Court held that the prosecution proved the case of culpable homicide against the Appellant beyond reasonable doubt, but was unable to hold that his intention was to kill the deceased. The trial Court found him guilty of the offence of culpable homicide not punishable with death, and sentenced him to prison for a term of ten (10) years. Dissatisfied with the judgement of the trial Court, the Appellant unsuccessfully appealed to the Court of Appeal. Still dissatisfied with the decision of the Court of Appeal, the Appellant further appealed to the Supreme Court.

Issues for Determination
At the Supreme Court, the Appellant formulated five issues for determination of the Court, to wit: “i. Whether the Court below was right when in its judgment it held that the defence of self-defence is not a complete defence or answer to an offence of culpable homicide punishable with death or not punishable with death under the Penal Code Cap 124, Law of Benue State, 2004? ii. Whether the Court below was right in affirming the decision of the trial Court that the Respondent proved beyond reasonable doubt a case of culpable homicide against the Appellant when the trial Court made a finding of fact that the defence of self-defence availed the Appellant who had no intention to kill he deceased? iii.

Whether the Court below in its judgement adequately appreciated, considered and or decided on all issues properly raised and canvassed before it by the Appellant in arriving at its decision? iv. Whether the Court below was right when it held that the trial Court had wrongly exercised its discretion in sentencing the Appellant to 10 years imprisonment without option of fine, having regards for the facts and circumstances of the case on appeal? v. Whether the Court below was right when it held in its judgement that the Respondent’s Brief of Argument was not an incompetent process in law and thereby dismissing the appeal on the issue? The Respondent formulated only one issue for determination, which is: “Whether the Court below was right by affirming and upholding the conviction and sentence passed by the trial Court on the Appellant for the offence of Culpable Homicide not punishable with death contrary to Section 225 of the Penal Code Cap.124, Laws of Benue State, 2004.” The Supreme Court stated that the crux of the issue in the appeal was whether the defence of self-defence is a complete defence or not.

Arguments
In arguing the appeal, Counsel for the Appellant submitted that the Court of Appeal was in grave error when it affirmed the decision of the trial Court, which held that the defence of self-defence availed the Appellant, but convicted him for culpable homicide not punishable with death and sentenced him to ten (10) years imprisonment. He stated that the decision is a misconception of the defence of self- defence under the Penal Code Law applicable in Benue State and an erroneous application of the law. Counsel for the Appellant further submitted that by holding that the defence of self-defence avails the Appellant and that the prosecution proved its case beyond reasonable doubt, the court pronounced the Appellant guilty and innocent at the same time. He referred the Court to the provisions of the Penal Code Law dealing with criminal responsibility – Sections 43 to 67 – and submitted that self-defence availed the Appellant and by Section 59 thereof, the irresistible conclusion is that his act in defence of himself is not an offence so as to be punished for the act.

Counsel submitted that since the Appellant did not commit an offence under Section 59 of the Penal Code, his case is not an offence under Section 33(2)(a) of the 1999 Constitution and he shall not be held guilty of a criminal offence under Section 36(8) of the Constitu- tion. He relied on the cases of THE STATE v DR. MURTARI KURA (1975) 5 UILR and AMEH v THE STATE (1978) NSCC 373 where the Supreme Court dealt with this issue and arrived at different conclu- sion from the position of the Courts below. Counsel for the Respondent on the other hand, argued that the Court of Appeal was right to have affirmed and upheld the conviction and sentence of the Appellant by the trial Court. Counsel contended that under the Penal Code, the defence of self- de- fence is not a complete answer to a charge of culpable homicide punishable with death. He argued that all the cases cited by the Appellant were based on the Criminal Code and therefore, inapplicable in this case. Counsel for the Respondent argued further that the heavy weather made of the provisions of the Penal Code by the Appellant, merely amounts to an aca- demic voyage aimed at wasting the time of the Court. He stated that under the Penal Code, the defence of self-defence only ameliorates the Appellant’s punish- ment, it does not exonerate him. He cited the cases of SULE v STATE (2009) 38 NSCQR (PT. II) 1069 and ABARA v STATE (1981) 2 NCR 110 in support of his case. In the Reply brief, the Appellant argued that the true interpretation of law and reliance placed on a defence of self-defence cannot amount to an academic voyage aimed at wasting the time of the Court.

Court’s Judgement and Rationale A citizen has a right to defend his person, family and property against unwarranted aggression, tres- pass or threat. This right is guaranteed to all citizens of Nigeria by Section 33(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The guiding principles are necessity and proportion. The force used must have been necessary and it must have been reasonable. The limits within which section 33(2) of the Constitution operates are set out in the Criminal and Penal Codes. Section 59 of the Penal Code provides that nothing is an offence which is done in the lawful exercise of the right to private defence. Section 32(3) of the Criminal Code also provides that a person is not criminally liable for an act, when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence. Relying on the authorities of UWAEKWEGHINYA v STATE (2005) 9 NWLR (PT. 930) 27 and KWAGHSHIR & ANOR. v THE STATE (1995) 3 NWLR (PT. 386) 651 SC, the Supreme Court concluded that the effect of a success- ful plea of self-defence is the same under the Penal Code and the Criminal Code.

A successful plea of self-defence negates the existence of an offence; so that where a person kills another in defence of himself, such killing is excused, and it does not amount to Manslaughter under the Criminal Code or Culpable Homicide not punishable with death under the Penal Code. The defence of self-defence is a complete defence under the Criminal Code and the Penal Code and a successful defence of self-defence leads to the discharge and acquittal of the Accused person. The simple moral idea, incorporated in all legal systems, including Nigerian criminal law, is that no one should be convicted of a crime, unless some measure of subjective fault can be attributed to him. Based on the foregoing position of law, Their Lordships held that the Court of Appeal misconceived the law applicable to the defence of self-defence, when it held that the defence merely ameliorates but does not completely exonerate the guilt of the Appel- lant. The Apex Court found the Appellant not guilty, acquitted and discharged him. Appeal Allowed.

Representation: Miss E.N. Tinosha with O.F. Eche, Esq. for the Appel- lant Mrs. B.E.T. Surma (PSC II, Ministry of Justice, Benue State) for the Respondent
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