Conditions for the Success of a Plea of Self-Defence

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 4th day of July, 2025

Before Their Lordships

Mohammed Lawal Garba

Adamu Jauro

Moore Aseimo Abraham Adumein

Obande Festus Ogbuinya

Abubakar Sadiq Umar

Justices, Supreme Court

SC/897/2014

Between

MAILUMBO ADAMU                                                                          APPELLANT

                               And

THE STATE                                                                                            RESPONDENT

(Lead Judgement delivered by Honourable Abubakar Sadiq Umar, JSC)

Facts

The Appellant was charged before the High Court of Bauchi State, on a lone count of culpable homicide punishable with death under Section 221 of the Penal Code Law of Bauchi State. The case of the prosecution was that, the Appellant stabbed one Ibrahim Garba to death. The Respondent called six witnesses in proof of its case, while the Appellant and his son testified in defence as DW1 and DW2 respectively. The Appellant raised the plea of self-defence, alleging that it was the deceased who first hit him with an iron rod three times, and that he only acted in self-defence by stabbing the deceased. 

After the conclusion of trial, the trial court delivered its judgement in which it found that the plea of self-defence availed the Appellant and consequently, discharged and acquitted him. Dissatisfied with the finding of the trial court, the Respondent appealed to the Court of Appeal. The Court of Appeal however, held that the plea of self-defence would not avail the Appellant given the circumstances of the case. Therefore, the Court of Appeal set aside the decision of the trial court, and replaced it with a verdict of guilt against the Appellant. Aggrieved, the Appellant appealed to the Supreme Court.

Issue for Determination

After considering the issues submitted by the parties in their respective briefs of argument, the Apex Court reformulated the issue for determination as follows:

Whether the Lower Court was right in setting aside the judgement of the trial court, and in convicting the Appellant on the lone count charge of culpable homicide punishable with death preferred against the Appellant?

Arguments

Counsel for the Appellant argued that, the Respondent did not discharge the burden of proof on it beyond reasonable doubt. Counsel argued that the Respondent failed to prove that the death of the deceased was premeditated, thereby failed to establish the requisite mental element (mens rea), as required by law. Counsel contended that the Respondent’s key witnesses – PW1 to PW4 did not witness the stabbing but arrived afterwards, rendering their evidence indirect.

Counsel further argued against PW4’s credibility, on the ground that his testimony was contradictory, and questioned the reliability of the confessional statement of the Respondent, submitting that it was improperly interpreted by a witness who admitted he was not proficient in Hausa. On this footing, Counsel maintained that the Respondent’s case was doubtful, and that the doubt should be resolved in the Appellant’s favour by discharging and acquitting him, relying on OCHIBA v THE STATE (2011) 17 NWLR (Pt. 1277) 663 at 685.

 Counsel for the Appellant argued further that the lower court erred by not attaching weight to the Appellant’s evidence, that DW2 found the Appellant’s daughter naked in bed with the deceased in the deceased’s house which the Appellant reported to PW1, and that the deceased later confronted the Appellant, blocked his path and attacked him. Counsel contended that the stabbing was thus, neither planned nor premeditated, but was a response to provocation and an immediate need for self-preservation. Relying on Section 33(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 59 of the Penal Code, and SAMPSON UWAEKWEGHINYA v THE STATE (2005) ALL FWLR (Pt. 259) 1911 at 1928–1929, Counsel submitted that the Appellant had no opportunity to retreat and was justified in stabbing the deceased, and that the defences raised ought to have been upheld in his favour. The Appellant’s Counsel also argued that the Court of Appeal failed to consider the Respondent’s Notice filed by the Appellant, thereby denying the Appellant fair hearing and occasioning a miscarriage of justice on the Appellant.

 In response, Counsel for the Respondent submitted that the offence of culpable homicide was proved beyond reasonable doubt against the Appellant, as the evidence established that the Appellant stabbed the deceased and that the deceased died shortly thereafter. Counsel referred to the testimony of the prosecution witnesses who confirmed the stabbing and the ensuing death, and the Appellant’s admission that he stabbed the deceased, contending that such an act would naturally be expected to result in death. Counsel submitted further that, even if the confessional statement is discountenanced for interpretation issues, the admissions by the Appellant and DW2 are sufficient to sustain a conviction. Counsel relied on AKINYEMI v THE STATE (1999) 5 NWLR PT. 607 PG. 449.

The Respondent’s Counsel also argued that self-defence will avail an accused person, only if he can show that he had reasonable apprehension of death or grievous bodily harm, and the means of retaliation is not disproportionate; whereas in the instant case, the Appellant failed to demonstrate the existence of these factors and therefore, the plea of self-defence cannot avail him. In support, Counsel cited OGBA v THE STATE (1999) 3 NWLR (PT. 139) 505 @518. Counsel submitted that there was no credible evidence to support the Appellant’s assertion that the deceased attacked him, was armed, or acted as the initial aggressor. He pointed out that the testimonies of the Appellant and his son (DW2) were inconsistent, and emphasised that the investigating Police officer confirmed that no weapon, whether rod or cutlass, was recovered at the scene, thereby undermining the Appellant’s claim of being assaulted.

Counsel also argued that the Appellant’s Respondent’s Notice filed before the Court of Appeal was duly heard and determined contrary to the Appellant’s claim, and referred to page 123-124 of the Record of Appeal where the Appellant argued the Notice and the Court of Appeal held that, in the absence of any complaint on the trial court’s ruling on the no case submission, the Respondent’s Notice is disregarded for want of merit.

Court’s Judgement and Rationale

As a preliminary, the Supreme Court noted that under Nigeria’s criminal jurisprudence, the burden on the prosecution to prove the guilt of an accused person beyond reasonable doubt requires proof of all essential elements of the offence, and once the evidence led establishes all the elements of the offence charged, both the actus reus and mens rea are deemed proved.

Relying on MUSA v THE STATE (2009) 15 NWLR (PT. 1165) 467, the Court held that to secure a conviction for culpable homicide punishable with death, the prosecution must prove: (1) the death of the deceased, (2) that the death was caused by the act of the accused, and (3) that the act was intentional, with knowledge that death or grievous harm was its probable consequence. Applying these principles, the Court found that the fact that the deceased died as a result of a knife wound inflicted by the Appellant, was not only established by the evidence of the prosecution witnesses, but also from the admissions from the Appellant and his son –DW2. The Court held that both actus reus and mens rea were established from these facts, as the law presumes that a person intends the natural consequences of his actions, particularly where a knife is used.

The Supreme Court held further that, with the elements of the crime established especially as the Appellant had admitted stabbing the deceased, the burden on the prosecution was discharged, and the onus then shifted on the Appellant to justify the stabbing. On the plea of self-defence entered by the Appellant, the Supreme Court held that the guiding principles of self-defence are necessity and proportion, and self-defence will only avail an accused person where there was a necessity for him to take the life of an a deceased aggressor, in order for the accused person to save himself from immediate death or grievous harm threatened upon him by the deceased, and he could not reasonably disengage himself from the encounter with the deceased; and where the force or means of retaliation is not disproportionate to the deceased’s initial act of aggression.

 The Court held that, the prosecution witnesses led evidence that the deceased was unarmed, and was stabbed unexpectedly by the Appellant, after PW2 and PW3 had separated them in a previous confrontation. The Court also referred to the contradiction in the testimonies of the Appellant and DW2, on the instrument they claimed the deceased used to hit the Appellant which rendered their testimonies unbelievable; and while the Appellant claimed that the deceased used an iron rod, DW2 claimed that the deceased used a cutlass. The Court held that in the absence of credible evidence to support the allegation that the deceased hit the Appellant first, the plea of self-defence raised by the Appellant would not avail him.  

On the defence of provocation raised by the Appellant on appeal, the Apex Court acknowledged that although it was not clearly raised at trial, a court in deciding a criminal matter is enjoined to consider any defence available to an accused person based on the evidence of record, particularly in capital cases. The Court however, stressed that an accused cannot simultaneously rely on both provocation and self-defence for the same offence, citing LAOYE v STATE (1985) 2 NWLR (PT. 10).

The Court then held that for a defence of provocation to avail an accused person, it must be established simultaneously that: (1) the act which led to the action of the person must be truly provocative; (2) the accused person must have acted in the heat of anger occasioning loss of self-control, before there was time for passion or emotion to cool (3) the force or means employed in retaliation, must be proportionate to the provocation offered.

Applying these principles, the Court rejected the Appellant’s reliance on the plea of provocation, and held that while the Appellant’s discovery of his daughter naked in the deceased’s house may have been provocative, the evidence showed that the Appellant was pacified by a village authority (PW1) prior to his encounter with the deceased, and had been separated from the deceased by PW2 and PW3 before he suddenly turned back and stabbed the deceased, hence, the Appellant could not be said to have acted in the heat of anger occasioning loss of self-control before there was time for passions to cool down. The Apex Court also held that the fact that the Appellant was found to be in possession of two knives when he went to report the matter to PW1 and when he accosted the deceased, lent credence to the fact that the Appellant’s action was premeditated.

Finally, on the Appellant’s claim of denial of fair hearing and miscarriage of justice by the alleged refusal of the Court of Appeal to consider his Respondent’s Notice, the Apex Court held that the Notice was indeed, taken into consideration, but found incompetent, as the Appellant had not filed a proper appeal or cross-appeal against the trial court’s ruling on the no-case submission.

Appeal Dismissed.

Representation

Jim Okodaso for the Appellant.

 Adamu Sabiu Gumba for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)