Simple View of the Right of Private Defence Under the Nigerian Laws

Generally, since the establishment of government institution in our societies ,the public relinquished their powers to the government they unanimously established pursuant to the laws governing a particular geographical setting.

The relinquishment of the rights by public to the government made government the primary responsible institution established for the protection of public rights, properties and life in general.

Similarly, this power extend to the defence of public morality , public sanity and peace , public order and etcetera.

However, what will be the position of law where a private individual forcefully invades in ones property or use such force in order to acquire such property ? Will a person who has the ability to use same force in order to prevent forcefully acquisition of his property by another person be responsible for causing damage or harm to the other person ?or when a kidnapper tries to abduct a daughter or chattels belonging to you or your neighbour does innocent Nigerian has right to attack for defence?

Thus, this article will highlight on the legality or otherwise of such action under the relevant laws in Nigeria and whether a person will be liable for protecting his life instead of waiting for the government to defend him in an emergency or imminent danger .

Meaning of Self Defence and the Legal Standpoint in Nigeria

To begin with a more lucid meaning of this concept, self defense is the use of reasonable and proportionate force in order to protect oneself, family ,property or group of persons who are in imminent danger .

This the act of protection exert by an individual who is in imminent fear or danger and has no other alternative other than to use force in order to prevent harm or injury that may be inflicted in how m or his property . Self defence is also called private defence . Thus, self defense and private defence will be used interchangeably through out this writing.

This rule as to the right of self defence has been passionately discussed first by Russell in his book: Russell on crime where he stated that:

“…a man is justified in resisting by force anyone who manifestly intends and may not merely resist the attack where he stands but may indeed pursue endeavours by violence or surprise to commit a known felony against eitherself defence or right of private defence has been stated by Russell on Crime thus:his person, habitation or property. In these cases,he is not obliged to retreat, his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker such killing is justifiable”

Legal Justification for Private Defence Under the Nigerian Laws

Nigeria just like many countries in the world recognized the vitality of protecting the lives and properties of the private individuals as the primary act that will ensure peace reign and equanimous survival of Nigerians.

Hence, individuals or rather private persons are legally allowed and empowered to exert reasonable power in order to repeal attack on their lives and properties.

For more appreciation of these provisions, the relevant sections will be enumerated below:

The penal code under the shade of section 59 provides that :

“Nothing is an offence which is done in the lawful exercise of private defence”

What this beautiful provision Justifies is the legal recognition of the right to self defence under the Nigerian law. Thus , it decrees that whatever one does in order to protect his body or property from such act which constitutes crimes , will not be criminally responsible as it was done in the exercise of his right to self defence. (See generally section 60 of penal code )

More so, criminal code under section 32(3) and (4) provides that :

That 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:

32(3)when an act is reasonably necessary in order to resist actual and unlawful violence threatened to him , or to another person in his presence;

32(4) when he does or omits to do the act in order to save himself from immediate death or grievous harm threatened to be inflicted on him by some person actually present and in a position to execute the threats and believing himself to be unable otherwise to escape the carrying of the threats into execution.

Similar provisions can be seen in many penal code laws of various states in Nigeria . Like for example, section 21(1) of Kaduna state penal code law , 2017 ,provides that:” Except culpable homicide and offences against the state punishable with death, no act is an offence which is done by a person who is compelled to do it by threat which at the time of doing it reasonably causes the apprehension that instant death to that person will otherwise be the consequence”.

Therefore, a quick squint of these provisions will reveal that a Nigerians has right to private defence which may extend to killing an aggressor in the course of such exercise; Nigerians possess a legal right self defence where the act repelled is either rape, assault with intent to gratify unnatural lust, abduction or kidnapping or trespass by a dreadful trespasser where there is no other alternative to repeal the attack or escape the threat or danger confronts him. And in exercising such reasonable force another person may aid a victims for the repellation of the act (See sections 286, 289 of criminal code).

Judicially, there are plethora of decisions whereby the Nigerian apex court declared legal the exercise of self-defense or private defence. In the case of MUHAMMAD v. STATE(2022) LPELR-57037(CA) the court Per JAMES SHEHU ABIRIYI, JCA (Pp 11 – 11 Paras A – C) stated that :

“It is the law that once there are reasonable grounds for an accused person to believe he was in danger the amount of force used by him to preserve his life becomes immaterial. It is not the law that a person threatened must take to his heels and run like Usain Bolt. All the accused person needs to show is that he did not want to engage in the fight and apprehension of possible death or great violence to his person. If the Court is left in doubt as to whether the accused person was acting in self-defence, he should be acquitted.”

In a similar case of AKPAN V. STATE (1994) 9 N.W.L.R (part 368) at P. 347

“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force on the assailant as is reasonably necessary to make effectual defence against the assault. The force which may be used in such circumstances must not be intended, and should not be 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”

However, before a plea of self defence or private defence will avail an accused he must be able to establish some ingredients and meet same conditions as established in the case of MUHAMMAD v. KANO STATE (2013) LPELR-20296(CA) where the court of appeal stated that: ” For a defence of self – defence to succeed, the following ingredients must be established:

(a) the accused must be free from fault in bringing about the encounter;

(b) there must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity;

(c) there must be no safe or reasonable mode of escape or retreat; and

(d) there must have been a necessity for taking life. (In order to sustain the defence of self – defence all the above ingredients must co-exist and be established).

These four conditions are conjunctive and the absence of one may lead to denial of the plea of self defence . Hence, in order to restrict those belligerent person who may employ this provision in order to satisfy their malicious wills by exterminating the life of innocent persons because of political differences , or philosophical debates the law put this heavy cardinal conditions .

Thus, in the case of OJUKOKAIYE v. STATE(2015) LPELR-25942(CA) the appealant was denied the plea of self defence since at the moment of firing his gun the appealant was not in an imminent danger or threat . To quote the words of the honourable justice Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 29 – 29 Paras B – F) where he judicially pronounced “From the totality of evidence it is manifest that the life of the appellant was not in danger of an attack by the deceased. The crux of the dispute was the unyielding determination of the appellant to receive the pistol from the deceased who had not shown the tendency or intention to fire it on the appellant, therefore at the time the appellant fatally shot the deceased on the stomach with his AK 47 rifle, the deceased had posed no threat to the appellant’s life, nor any threat to cause the appellant grievous bodily harm, nor did the deceased’s conduct call for the necessity to take the deceased’s life; so the defence of self defence could not have availed the appellant”.

In a similar case of STATE V EMMUNU (1968) NWLR at page 15 where the accused shot and killed the deceased whose action, by putting his

hand in his pocket frightened him. He claimed the plea of self defence but the court rejected his plea as the weapons used in protecting his myself. was not proportionate.

Therefore apart from a person must be in an imminent danger he must be able to show or establish that the weapons used in order to repeal the attack or the danger is proportionate.

Conclusion

From the above it is justifiable discerning from various laws and judicial precedent that Nigerians have right to private defense and can extend to killing of the aggressor.

But, the question that I could not resolve by my brain, why is it that people do not resist the attack of the kidnappers ,bandits and other organized criminals in our societies? Despite the legal justification and backup people are afraid.

Lastly, as a person who subscribed to untilitarian view of every law, I want to enjoin Nigerian people , mostly those states bedevil by evils like bandits and kidnappers and cattle rustlers to begin exercising this right in order to curtail and protect our lives ,property , public order and peace in our society . After all the exercise of this right will bring more pleasure than pain in our societies.

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