Self defence doesn’t arise where victim is weaker -SC

“Statement of OffenceMurder: Contrary to Section 319 of the Criminal Code Cap 30 Vol.11 Laws of Oyo State of Nigeria now applicable to Osun State. Particulars of OffenceOjo Adeyeye ‘M’ on or about 5th day of February, 1997 at about 7.30 hours at Iwori Aba Odole village in the Ilesha Judicial Division murdered one Babalola Ezekiel […]

“Statement of Offence
Murder: Contrary to Section 319 of the Criminal Code Cap 30 Vol.11 Laws of Oyo State of Nigeria now applicable to Osun State.
 Particulars of Offence
Ojo Adeyeye ‘M’ on or about 5th day of February, 1997 at about 7.30 hours at Iwori Aba Odole village in the Ilesha Judicial Division murdered one Babalola Ezekiel ‘M’.”
Upon the charge being read to the accused, he pleaded not guilty. The case proceeded to be heard with the prosecution calling seven witnesses while the accused gave evidence in his own defence. In the course of the trial the accused’s statements, a medical report, a dane gun and cutlass were all tendered and admitted as exhibits.
Both counsel for the prosecution and accused respectively, later addressed the court and in a considered judgment delivered on the 26th July 2001 the learned trial judge found against the accused, who was accordingly convicted of murder and sentenced to death by hanging,
The facts of the case briefly are that the appellant and deceased who had a common boundary demarcating their farmlands had had a disagreement in the appellant’s farm land and in the course of which according to the appellant, who was the only eye witness, the deceased had pointed his dane gun at him threatening to kill him.
The appellant knocked off the dane gun from the deceased with his cutlass and a physical fight ensued between them.  In the course of the scuffle the deceased, the appellant alleged, appeared to have gained the upper hand and that the appellant not knowing what else to do struck the deceased on the neck with his cutlass and he died instantly. The appellant admitted digging the ground and burying the deceased. An autopsy report tendered revealed that the deceased had died as a result of injury sustained from the cutlass blow.
In his two extra judicial statements to the police (Exhibits ‘B” and ‘E’) and also his statement in court, the appellant admitted killing the deceased but however, stated unequivocally that he did so in self defence when the deceased attempted killing him with a dane gun.
None of the respondent’s witnesses or any other at all was an eye witness to the alleged crime except the appellant himself. The trial court rejected the appellant’s defence of self defence and proceeded to convict and sentence him as charged.
The appellant was dissatisfied with the judgment of the trial court and consequently appealed to the Court of Appeal, which on the 25th March, 2012 delivered its judgment and dismissed the appellant’s appeal and affirmed his conviction and sentence by the trial court.
 The appellant, again was dissatisfied with the outcome at the Court of Appeal and has now appealed against the judgment to this court vide a notice of appeal dated and filed 21st April, 2010. Two grounds of appeal were raised.
From the two grounds of appeal the appellant formulated a lone issue which was also adopted by the respondent as follows:-
“Whether the Court of Appeal was right in affirming the judgment of the trial court to the effect that the defence of self defence was not available to the appellant in all the circumstances of this case?
 In summary, the learned counsel therefore urged the court to hold that the defence of self defence was available to the appellant in the circumstances. Furthermore that the respondent herein did not disprove the defence put forward by the appellant; that the court should therefore set aside the judgment of the lower court and discharge and acquit the appellant in the circumstance.
 On behalf of the respondent, his counsel, for purpose of recapitulation outlined a graphic summary of those facts which were not in dispute and related them closely to Section 286 of the Criminal Code Law on defence of self defence as well as authorities establishing the principle.
These are therefore the arguments and submissions advanced by both counsel in the appeal.
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 ground that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force on the assailant as is necessary for defence even though such force may cause death or grievous harm.”
The defence of self defence by nature, is determined essentially on facts and circumstances of each case.
The guiding principles of self defence are necessity and proportion. The two questions which ought to be posed and therefore answered before the trial court were:- (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? If however the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such a self defence, then the defence cannot avail the accused.
It is also trite that the defence is weakest where the position of the victim is weaker than that of the accused and hence the issue of self defence does not arise; the defence will also not be available. See Udofia V. The State (1984) NSCC 836, at 856 -857.

The learned trial court judge on the record I hold, meticulously reviewed the defence of self defence put forward by the appellant and thereafter held thus on the defence and said:-
“I have carefully watched the demeanor of the accused in the witness box when he gave evidence before me. I am convinced that he did not say the truth when he said that the deceased after knocking him down retrieve the dane gun and tried to shoot him again hence he killed the deceased. This aspect of his evidence was not narrated in his memory at the Police station. Rather in his statement at the police station he said he killed the deceased because of the dispute on land. I strongly believe that the accused was the aggressor and assailant in this case and so defence of self-defence is not available to him. It is clear that at the stage the accused killed the deceased he was not under any danger or threat of death since the gun was already blocked off the hand of the deceased.   
The accused must believe on reasonable ground that he cannot otherwise preserve his own life other than killing of the deceased before the defence of self defence can avail him.
In my view the defence of self defence is not available to the accused. He maliciously killed the deceased.”
 The court below- in affirming the decision of the trial court on the same point also held and said:-
“In the present case on appeal, allegations of theft on the deceased’s farm which shares the same boundary had been made against the appellant which he denied but his statement to the police is explicit; that he killed the deceased in order to put to rest the quarrels and confrontation that both had been having over land ownership. This confession to my mind being voluntary is quite direct and positive to rule out the defence of self defence and to ground a conviction for the murder of the deceased.

The severity/ of the machete cut coupled with where the machete cut was directed i.e. the neck of the deceased are not consistent with the defence of self defence but a pre – meditated intention to either kill the deceased or cause him grievous bodily harm. That he dug a pit in the ground where he buried the deceased’s body which he covered with cocoa leaves and told nobody of the killing was an attempt to hide his crime. I do not find the findings of the lower court perverse, unreasonable or unsupportable by evidence or circumstances of this case and as such I have no reasons whatsoever to disturb the findings.”
In this appeal, the evidence accepted by the learned trial judge excluded any question of self defence on the part of the appellant.
The Court of Appeal agreed with the trial court’s rejection of the defence. I also agree entirely with these concurrent findings of fact of the two lower courts. See the case of Elowa Enang & Ors. V. Fidelis Ikor Adu & Ors. (1981) 11-12 SC. 25. In other words, the defence of self-defence was rightly rejected by the learned trial judge and also affirmed by the lower court. There could have been no other alternative verdict better than the one put in place.
The defence of self defence put up by the appellant has been disproved by the prosecution who had successfully proved the appellant guilty as charged. The issue is therefore resolved against the appellant. The appeal is hereby dismissed as lacking in merit.
The conviction and sentence of death passed on the appellant by the trial High Court Osun State on the 26th July, 2001 and which was on the 25th March, 2010, affirmed by the Court of Appeal Ibadan Division is hereby also endorsed by this court. The sentence of death by hanging passed on the appellant is also affirmed.