Sunday, 25 August 2019


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Of all the rights guaranteed under the Nigerian Constitution, the most fundamental and indeed the most important is the Right to Life. This is so because, a dead man cannot exercise or enjoy all other rights guaranteed by the Constitution. Life therefore remains a condition precedent for the enjoyment of all other rights, hence its importance.

Section 33 of the Constitution recognises the sanctity of life and protects it. It provides that every person has a right to life and no one shall be intentionally deprived of his life.

As fundamental and important as this right is, it is not an absolute right; it is a qualified right. This means that there may be instances where a person is killed and the deceased would not be considered to have been deprived of his right to life. In such instances, it would be said that a limitation on the right to life has been placed. It is usually the actions of the deceased that result in him being deprived of this right.
A person would not be deemed to have been deprived of his right to life in the following instances:
  1. When he is executed in respect of a criminal offence for which he has been found guilty by a court of law in Nigeria;
  2. When he is killed as a result of lawful force used for the defence of any person from unlawful violence or for the defence of property;
  3. When he is killed in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
  4. When he is killed for the purpose of suppressing a riot, insurrection or mutiny.
We would consider the second exception; where a person is killed in defence of any person from unlawful violence or for the defence of property.
Defence or Self-Defence as a defence to murder has three arms; it can be invoked when the accused killed the deceased in order to protect his property; to protect his own life/dignity where it is threatened or to protect the life or dignity of another person.

Homicide (which is the deliberate killing of another) is excusable if a person takes away the life of another in defending himself, if the fatal blow which takes away life is necessary for his preservation.[1] It is a complete defence in law because when it is upheld as availing an accused person, he would be acquitted of the charge of murder.

The defence has been explained in the simplest of terms thus; ‘the law would excuse a killing if the killer had reasonable grounds for believing that his own life was in danger and that he had to kill in order to preserve it’.[2]

Before this defence will avail an accused, he must establish the following[3]:
  1. The accused must be free from fault in bringing about the encounter: it is important that the assault which the accused sought to protect himself against was not provoked by him by an earlier assault on the deceased; this is because it could destroy the defence of self defence. However, even if the assault was provoked by an earlier assault inflicted by the accused on the deceased, it must not be one coupled with intent to kill or inflict grievous bodily harm. It is best that the assault was not provoked first by the accused, as this would make his defence of Self Defence more believable by the court.
  2. At the time of the killing he must have believed himself to be in imminent danger of death or grievous bodily harm: the accused must have feared that if he does not kill the deceased, the deceased would kill him. This fear must be reasonable; the apprehension that the accused felt must be such that any reasonable man would feel if he finds himself in such a situation.
  3. There must be no safe or reasonable mode of escape by retreat: it was earlier stated that the law respects the sanctity of life. Killing another human being should never be a first option. It is only where retreat is impossible or where the only course open to the accused was to kill the deceased that this defence would avail him. It goes without saying that this defence is not available to one who willingly decided to engage in a fight.
  4. There must have been a necessity for taking life: he must show that it was necessary to take the life of the deceased in order to preserve his own life.The moment the deceased decided to take the life of another or inflict grievous bodily harm on another, he lost his right to life; because, the law in that instant empowered the accused to deprive the deceased of his life in order to protect his.
The defence of self defence would avail any person who acting without malice and intent to kill, kills a person who in his presence tries to kill or inflict grievous bodily harm on his child, father, mother, spouse or even on a person with whom he has no relationship.
The court would always be guided by two basic principles; necessity and proportion. Was it necessary to kill the deceased? Was that the only option open to the accused? Was the level of force used proportionate to the threat posed? If the answer to all these questions is yes, the defence would most likely avail the accused.

[1] Rex vs. Rose (1884) 15 Cox C.C. 550
[2] Laoye V. The State(1985) LPELR-1754(SC)
[3] Afosi V. State (2013) Lpelr-20751(SC)


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