LEGAL Palace

09/08/2022

Actus curae neminer fact injuriam

18/05/2020

AN APPRAISAL OF SELF-DEFENCE UNDER THE NIGERIAN CRIMINAL SYSTEM


INTRODUCTION
Self defence is one of the commonest defences raised by defendants in a criminal charge bothering on assault, murder and other offences. It is also a recurrent decimal in criminal matters as nearly every accused person will want to rely on the defence.
This work seeks to analyze the defence, with a view to explaining what it is, the elements, when it can be successfully pleaded and the effect of pleading same.

DEFINITION OF SELF DEFENCE : In the case of Braid V. The State (1997) 5 NWLR (pt. 5041) 141 @ 149 SC. The court stated that "the doctrine of self defence posits that a person can act in ways that would otherwise be unlawful to prevent the commission of a crime." Also, According to Black’s Dictionary 9th Edition, it was defined as "a use of force to protect oneself, one’s family or one’s property from a real or threatened attack."

In Njoku V. State (1993) 7 SCNJ 36, the court was of the view that for self defence to avail, there must be clear and unambiguous evidence before the Court of trial, that the victim was attacking or about to attack the appellant in a manner that grievous harm or death was possible and he had to defend himself; that the self defence was instantaneous or contemporaneous with the threatened attack; and that the mode of self defence was not greater or disproportionate with the threatened attack. The Supreme Court in Amala V. State (2004) 18 NSCQR 834 was of the view that, "if a man attacks me, I am entitled to defend myself, and the difficulty arises in drawing the line between mere self defence and fighting. The test is this: a man defending himself solely to avoid fighting. Then supposing a man attacks, and I defend myself, not intending or desiring to fight, but still fighting in one sense to defend myself, and I knock him down, and thereby unintentionally kill him, that killing is accidental."

Generally, a person is justified in using a reasonable amount of force in self defence, if such a person believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger.

It is pertinent to note that what matters most in pleading self defence is the reasonableness of the force used. In order to arrive at the above, the court asks two questions; Was the use of force necessary in the circumstances i.e was there a need for any force at all? And was the force used, reasonable and necessary in the circumstances?

The Criminal Code Act provides for self defence in two ways. Vis-à-vis
Self defence against unprovoked assault ( Section 286 of the Criminal code Act)
Self defence against provoked assault ( Section 287 of the Criminal Code Act)
For the unprovoked assault, the position of the law is that the person so assaulted has a legal obligation to use such force as is necessary to make effectual defence against such assailant. This is, however, not the only effect. The other effect which comes under the proviso in section 286 of the criminal code is that it restricts the person defending himself against any force that might cause death or grievous bodily harm. But where the nature of the assault is likely to cause reasonable apprehension of death or grievous harm and such a person believes he cannot otherwise preserve himself from death or grievous harm, he is legally backed to use any force that is necessary even if it will lead to death or cause grievous harm. In Nkpuma V. State (1999) 9 NWLR (PT. 317) 374, It was held that "it is trite law that where an unprovoked assault causes the victim reasonable apprehension of death or grievous harm, the latter is entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger and this he is entitled to do even though such force may cause death or grievous harm."

On the other hand, Section 287 of the criminal code, provides for the right of self defence to persons who in all circumstances would be labeled criminals for the initial assault. What this means is that the person who will rely on this section is someone who initiated the assault but somehow found himself at the receiving end of the whole scene. The provision authorizes such an initial aggressor, again on the basis of reasonable ground of belief in the apprehension of death or grievous harm, to use any such force as is reasonably necessary for his preservation from death or grievous harm. However, the law provides a proviso to this section which is that the person who first assaulted must have declined further conflict and quitted it or retreated from it. In essence, the initial aggressor has to decline further conflict and or must have quitted it and retreated from it. The implication of this is that by retreating or quitting further conflict, the initial aggressor becomes a person newly assaulted and only then will he be legally backed in using any such force that is necessary for his self preservation.

ELEMENTS OF SELF DEFENCE
For self defence to avail an accused person, there are some elements or ingredients that needs to be established. In the case of Omoregie V. State (2008) 12 NWLR SC(PT.III), it was held that self defence that will have any impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable.

The court further listed the ingredients/elements of self defence, which include:
* The accused must be free from fault in bringing about the encounter;
* 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;
* there must be no safe or reasonable mode of escape by retreat; and
* there must have been a necessity for taking life.
In other to sustain the defence, all the above ingredients must coexist and be established. See also, Nwede V. State (1995) 3 NWLR (PT.384) 385, Nwede V. State (1985) 3 NWLR (PT 13) 374.

WHEN SELF DEFENCE CAN BE RAISED AND THE EFFECT OF A SUCCESSFUL PLEA THEREOF.
Self defence is not one of those defences required to be raised at any particular time. Self defence, unlike Alibi which is required to be raised at a particular time, is therefore one which can be raised at any time and the court is expected to consider it no matter the incoherence therein. Where it is not raised at all, the court is also duty bound to consider it if the evidence led discloses a possibility of it.

The effect of a successful plea of self defence is an acquittal on the charge wherein it was raised. It has been held in plethora of cases that self defence, where it avails an accused person, justifies or excuses by law the act or omission of the accused, thereby rendering him not liable for the offence charged. In other words, where the defence succeeds, the accused must be discharged and acquitted. See the case of Maiyaki V. State (2008) 3 NWLR (PT. 1075); Apugo v. State 15 NWLR (PT. 1002) 227.

It is note-worthy that for self defence to be raised, the accused must admit to the commission of the crime, but for a reasonable reason. See Mgboko V. State (1972) 1 RSLR 19

CONCLUSION: This work explained that Self defence can be divided into 2 segments. The first segment deals with life of an individual and same is divided also into two arms. The first arm deals with self defence that will not result in death while the second arm deals with that which could result in death. Further, the second segment is provoked assault and unprovoked assault. It is to be noted that where a person who was attacked used a greater degree of force than was necessary in the circumstances and thereby caused the death,self defence will not avail him.

Lastly, this work pointed out with respect to this defence that it must be reasonable, necessary and proportionate to the force used.

ABOUT THE AUTHOR
Ikedinobi Uche Emmanuel is a student of the faculty of law, Nnamdi Azikiwe University, Awka, Anambra state. He is a legal researcher and an author.

Copyright Reserved
©2020

09/04/2020

Recently the news filtered of the coming of Chinese Doctors into Nigeria for the purpose of treating the outbreak of Corvid-19 Virus in Nigeria, against many out cry from citizens and medical practitioners alike. This in itself has raised certain Legal concerns on whether or not Chinese Doctors can practice in Nigeria, and the necessary regulatory processes involved. The primary purpose of the team is to provide China Civil Engineering Construction Corporation (CCECC) employees with critical and necessary healthcare,” the Punch report quoted CCECC Executive Director Jacques Liao as saying.

Considering the extant position of the Medical practitioners Act, Rules of Professional conduct for Medical and Dental practitioners, Medical and Dental Council of Nigeria’s checklist for temporal registration of foreign doctors, in which they all provides for the the basic process and requirement a foreign medical practitioners can go through before he is allowed to even practice in Nigeria. Further more the exigency of time, was envisaged when the Act provides for temporal registration. This makes sense considering the fact that anybody wielding medical certificate should not just be allowed to come in to Nigeria and practice in the name of being a foreigner.

It is my firm view that the said Chinese Doctors or any foreign Doctor can not practice in Nigeria, for whatever reason at all without fulfilling the due process of the Law; and that anything contrary will amount to deliberate Illegality.


Legal Analysis:
The instructive law for registration of Medical Practitioners in Nigeria is the Medical and Dental Practitioners Act. The duty of the Council under the Act is not limited only to doctors trained within the Country, but also to Doctors trained outside the Country and Doctors who wishes to practice in Nigeria for a limited purpose and period.

Section 6(3) of the Act provides that
“Separate register shall be maintained for medical practitioners and dental surgeons respectively, each of which shall be divided into the following parts:-
i. one part for fully registered persons;
ii. one part for provisionally registered persons, in the case of medical practitioners; and
iii. one part for persons who have been granted limited registration under section 13 of this Act.”

Section 13 further provides that:
Practitioners for limited registration:
“(1) Where a person satisfies the Council—
(a) that he has been selected for employment for a specified period in an approved hospital or as the case may be, in any other approved institution in Nigeria in the capacity of a practitioner of medicine, surgery, dental surgery or midwifery, and that he is or intends to be in Nigeria for a limited period for the purposes of serving for that period in the employment in question; and
(b) that he has passed the assessment examination, if any, of the Council following some qualifications granted outside Nigeria which is for the time being accepted by the Council for the purposes of this section as respect the capacity in which, if employed, he is to serve.

The Council may, if it thinks fit, give a direction that he shall be registered for a limited period as a medical practitioner or as a dental surgeon as the case may be. ”

This goes to show that every foreign medical doctor who either wants to practice fully or temporarily for a limited time and cause, must be registered with the under the Act.
The code or ethics for Medical practitioners also provides in section 6(a)(III) that:

“This is the type of registration issued to expatriate practitioners. Unlike the Full registration, it has a specific period of validity after which it must be renewed or the practitioner must leave the country. It is also tied to a specific employment. Any change of employment invalidates the registration and the practitioner must then process a new registration for the new job. A practitioner on Limited Registration cannot set up or run a clinic or hospital on his own. A practitioner on the Limited or Temporary Register is not allowed to work privately on his own. He must work with Nigerian practitioners in the clinic or hospital.”

Further more, there are mandatory checklist for temporal registration of foreign Doctors in Nigeria, stipulated by the Medical and Dental Council of Nigeria.

The question now is whether or not the Chinese Doctors will be made to respect our Laws and fulfilled these Legal requirements before they will commence any Medical work in Nigeria however slightly.

Conclusion
The sum of my submission is that, the Chinese Doctors who recently came into Nigeria or any other foreign Doctor cannot practice in Nigeria without following the above stated procedures of the Law. Any attempt to do otherwise, while practising as a Medical Doctor and attending to patients in Nigeria, will amount to a gross violation of extant provisions of the Law.
Let the right thing be done. Let the Law of the Land be followed.

Opatola Victor Esq. is an Abuja based Legal Practitioner.

06/01/2020

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01/01/2020

25/12/2019

From all of us at Legal Palace, we wish you and your family a Merry Christmas and a Happy New year in advance 🎄

29/11/2019

Difference between a Presentment and an Inquisition.

The former is found by a grand jury authorized to inquire of offences generally, whereas the latter is an accusation found by a jury specially returned to inquire concerning the particular offence.

The writing which contains the accusation so presented by a grand jury, is also called a presentment.

21/11/2019

LEAKAGE OF S*X TAPE...

Do you think the school has the right to expel an adult for having s3x which did not even happen in the school??

20/11/2019

Falsus in uno, falsus in omnibus is a Latin phrase meaning "false in one thing, false in everything." At common law, it is the legal principle that a witness who testifies falsely about one matter is not credible to testify about any matter. Although many common law jurisdictions have rejected a categorical application of the rule, the doctrine has survived in some American courts.

19/11/2019

Statistical analysis of election results crucial for expert evidence under section 68 of Evidence Act, 2011

SENATOR AHMAD ABUBAKAR MO-ALLAHYIDI v. BINOS DAUDA YAROE & ORS
CITATION: (2019) LPELR-48733 (CA)

In the Court of Appeal�
In the Yola Judicial Division�
Holden at Yola
ON SATURDAY, 26TH OCTOBER, 2019
Suit No: CA/YL/EPT/AD/SN/168/2019

Before Their Lordships:

CHIDI NWAOMA UWA, JCA
JAMES SHEHU ABIRIYI, JCA
ABDULLAHI MAHMUD BAYERO, JCA

Between

SENATOR AHMAD ABUBAKAR MO-ALLAHYIDI -Appellant(s)

And

1. BINOS DAUDA YAROE�2. PEOPLE’S DEMOCRATIC PARTY (PDP)�3. INDEPENDENT NATIONAL ELECTORAL COMMISSION -Respondent(s)�
LEAD JUDGMENT DELIVERED BY ABDULLAHI MAHMUD BAYERO, J.C.A.

FACTS OF THE CASE
This appeal is against the Judgment of the National and State Houses of Assembly Election Petition Tribunal for Adamawa State, Yola.The fact of the case is that the appellant was the candidate sponsored by the All Progressives Congress (APC) for the Adamawa South Senatorial District election, which held on February 23, 2019. At the conclusion of the election, the 3rd respondent returned the 1st respondent, sponsored by the 2nd respondent, as winner. Aggrieved with the return of the 1st respondent, the appellant, by a Notice of Petition, approached the Tribunal and challenged the return of the 1st respondent, on the following grounds:

I. That the 1st Respondent was not duly elected by majority of lawful votes cast at the election held on February 23, 2019 in respect of Adamawa South Senatorial District of Adamawa State.
II. The election of 1st respondent was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended). It was the contention of the appellant that the 1st respondent would not have been duly elected by majority of lawful votes cast in the election if the results from the election in the affected Local Governments are voided, on the ground of electoral irregularities and acts of non-compliance. After hearing the Petition, the Tribunal dismissed the Petition. Dissatisfied, Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
1. The appeal was determined on the issues formulated by the appellant, as follows: �Whether having regards to the facts and circumstances of this case the Tribunal can be said to have rightly applied Section 68 of the Evidence Act, 2011 when it refused to admit or give probative value to the evidence of PW10 and Exhibit ‘AA.
2. Whether having regards to the provisions of Section 83(1) and 2(b), 87(a), 89(a)(i) (ii) and (e) of the Evidence Act, 2011, the Tribunal can be said to have acted within the ambit of the law when it refused to accord probative value to or act on the evidence disclosed by Exhibit N, N1-N33.

APPELLANT’S COUNSEL SUBMISSIONS
On issues one, the appellant submitted that the rejection of the “Report of the Inspection/Statistical Analysis of Accreditation Data in Forms EC8A (1), EC8B(1), EC8C(1) EC8D(1), Voters Registers and Polling Unity by Polling unit accreditation report used in the February 23, 2019 Adamawa South Senatorial District Election” and the evidence of PW10 had no legal basis and ought to be set aside. According to Appellant, the correct test of the relevance of expert opinion is whether the witness is specially skilled in the particular field in which his testimony/opinion becomes material and where so found, evidence of his qualification as an expert in the said field becomes vital, admissible and relevant. He cited ANPP V. USMAN (2008) 12 NWLR (Pt. 1100); (2008) LPELR-3786(CA).

That the PW10 tendered proof of his qualification to render statistical analysis in Exhibit AA, yet, that piece of evidence was glossed over by the Tribunal in preference to Exhibit ZC- MBA of School of Business Management and that it was on this basis that the tribunal held that PW10 was not qualified to render statistical opinion as expert on the ground that he has only MBA in Business Management.

On issue two, the appellant submitted that the rejection of Exhibit N, N1-N33 which are duly certified true copies of smart card reader Report for the Adamawa South Senatorial Election was a failure of the tribunal to appreciate the exceptions created by the Section 83(1) of the Evidence Act on the requirement of a maker being called to give evidence on document sought to be relied upon by a party in his case. That original documents and the maker thereof may not be available at all times which is why Section 83(2) of the Evidence Act 2011 created exceptions to the general rule that the maker of a document must be called for the document to be admissible/accorded probative values; that secondary evidence can be led in place of primary evidence. That Exhibit N series is a certified true copy of the 3rd respondent’s official document, which renders it a public document under Section 102 of the Evidence Act 2011.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, the respondents submitted that the tribunal was right not to ascribe probative value to the evidence of PW10 as he was not an independent witness having been contracted by the Appellant to analyze results for the Appellant’s political party. That his evidence of statistical analysis cannot stand without the elements of bias and sentiments in favour of the appellant and the Party who contracted him. That PW10 under cross-examination admitted he did not know who made the entries into the Forms EC8A-EC8D series, which is no doubt an admission that he was neither the maker of the document nor involved in the entries made in the document and this rendered his evidence of no probative value to the tribunal. That statistical analysis of election results is not one of the items on which expert opinion could be given in evidence under Section 68 of the Evidence Act as held in ANDREW vs. INEC [2018] 19 NWLR (Pt. 1625) 523 at 557; (2018) LPELR-43847 (SC).That the case of AREGBESOLA & 2 Ors V. OYINLOLA & 2 Ors [2011] 9 NWLR (Part 1253) 458; (2010) LPELR-3805(CA) which is the only case in election petition of all the cases relied upon by the appellant, is with respect distinguishable from this one and is not at all helpful to the appellant in this case.

On issue two, the respondents submitted that the evidence obtained from the Smart Card Reader did not prima facie meet the conditions for its admissibility under Section 84 of the Evidence Act, 2011 and the Tribunal was therefore right not to have acted on it. That Section 84(4) of the Evidence Act is clear and unambiguous as to what a certificate with respect to electronically generated evidence should contain. That the certificate of INEC in the instant case only fulfils paragraph (c) of the subsection and didn’t not describe the manner in which the statement was produced. It does not also state the particulars of the device involved in the production of the document. As such, the Smart Card Reader given by the witnesses is therefore inadmissible for having failed to meet the conditions for admissibility.

RESOLUTION OF ISSUES
In resolving issue one, the Court held that the issue for determination is whether the Tribunal was bound to accept and act on the report of the statistical analysis of PW10 and Exhibit AA. The cited the case of AKEREDOLU V. MIMIKO (2014) 1 NWLR (PT. 1388) 402 at 439-440, H-B; (2013) LPELR-21413 (SC), where the Supreme Court held thus:
”
The Court is not bound to accept the evidence of any expert, even one who has no disclosed incentive or motive other than helping the Court in the quest for justice. Therefore when an expert witness, by his own ipsi dixit, portrays himself as one hawking his evidence or a mercenary who would fight any man’s battle for a fee as it were, gives evidence in Court, the Court has a duty to treat his evidence with the disdain it deserves. After all, as the saying goes, “he who pays the piper dictates the tune.”
Furthermore, the Court cited ANDREW V. INEC (2018) 19 NWLR (Part 1625) 523 at 557; (2018) LPELR-43847(SC) wherein the Apex Court held that:
“As was rightly in my opinion submitted by Chief Wole Olanipekun SAN, in an election matter such as the instant case, the evidence required is not the one which was picked up from perusing documents made by others. Otherwise, any one with basic comprehension/arithmetic skills would be able to testify anywhere in Nigeria. The requirement of the law is that a petitioner must call eye witnesses who were present when the entries in the forms were being made and can testify on how the entries in the documents were arrived at. It is to be noted that the appellant’s witnesses were not the makers of the documents in respect of which they testified and were not present when the documents were made. They were thus, not competent and/or capable of giving testimonies and explain the circumstances surrounding how the entries in the electoral documents were made. See Oke v. Mimiko (Supra).”

Also, that Section 68 of the Evidence Act 2011 which allows for the reception of evidence of experts does not cover the area of statistical analysis of election results in respect of which PW10 testified and this provision is fortified by the court in ANPP V. USMAN (2008) 12 NWLR (1100) 1 66 at 68 paragraphs A-E. This issue was resolved in favour of the Respondents.

In resolving issue two, the Court held that the INEC Certificate in respect of Exhibit N1 – N33 in the instant case only shows the signature of one Ishaka Bala, a senior legal officer Independent National Electoral Commission Adamawa State. It does not describe the manner in which the Exhibits were produced, nor the particulars of the device involved in the production of the Exhibits to show that they were produced by a computer during the period over which the computer was used to store the information.

Also, no evidence was given by the appellant or any of his witnesses before the Tribunal to lay the necessary foundation or requirement for admissibility of Exhibit N series as provided by Section 84(4)(a) and (b) of the Evidence Act, 2011. That it is further a requirement of the law that since the appellant tendered Exhibits N series before the Tribunal, he was required to have called evidence in relation to the use of the computer from which Exhibits N series were generated. The Court relied on KUBOR & ANOR V. DICKSON & ORS (2012) LPELR – 9817 (SC) Pages 48-50 where the Supreme Court held thus:

“A party that seeks to tender a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under Section 84(2) of the Evidence Act, 2011. I agree entirely with the above conclusion. Since the Appellants never fulfilled the pre-conditions laid down by law, Exhibits D and L were inadmissible as computer generated evidence/documents.”
This issue was resolved in favour of the respondents.

HELD
The Court dismissed the appeal for lacking in merit.
Appearances:
U.S. Sule, SAN with him, Abubakar Ali, Esq.,
C. F. Odum, Esq., C. F. Odiniru, Esq., -For Appellant(s)
H.A. Isah, Esq. and A.A. Mbamoi, Esq.

Chief L.D. Nzadon, Esq. with him,
Abubakar Sai’d, Esq., Hussein G. Maidawa, Esq. -For 1st Respondent
and H. Omeh, Esq.

Ahmad Isa, Esq. with him, S. J. Wugira, Esq. -For the 2nd Respondent
and S.G.Udoh, Esq.

E.O. Odoh, Esq. with him, Stephen Ibyem Esq.
and J. Williams, Esq. -For 3rd Respondent

15/11/2019

What is your Say on the Judgement of the Court in the case of the Pastor of COZA and Busola wife of Timi D. ?