IN THE SUPREME COURT OF NIGERIA
On Monday, the 25th day of March 1963
ALI ABADALLABE .................................................................................. APPELLANT
BORNU NATIVE AUTHORTY ............................................................................................... RESPONDENT
Appeal against conviction for murder.
The following provisions of the Penal Code are relevant to this case. (What is omitted from the section is not):-"59. Nothing is an offence which is done in the lawful exercise of the right of private defence
"60. Every person has a right, subject to the restrictions hereinafter obtained, to defend:-
(a) his own body and the body of any other person against any offence affecting the human body;"
"62. 'The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
"65. The right of private defence of the body extends, under the restrictions; mentioned in sections 62 and 63, to the voluntary causing of death only then the act to be repelled is of any of the following descriptions, namely-
(a) an attack which causes reasonable apprehension of death or grievous hurt;"
"222. (2) Culpable Homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is excising such right of defence Without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence."
Section 28(d) of the Criminal Procedure Code, read with section 26(a) thereof and Appendix A, authorises a private person to arrest a person committing in his presence an offence of house trespass or aggravated defence from of house trespass.
The appellant entered by stealth, at midnight, the house of the deceased which was shut and of which the inmates were asleep, with the intention of committing an offence; he was carrying a knife, and when seized by the deceased woman he stabbed her mortally to affect his escape. He was convicted of culpable homicide punishable with death, and appealed.
Counsel for the appellant argued that the appellant could claim the protection of subsection (2) of sections 222, 59 and 60 of the Penal Code.
The deceased was exercising a lawful right of arrest in seizing the appellant and was not committing any offence in so doing which gave him any right of private defence, so no question of self-defence would arise; and in any event the case could not be brought under section 65(a) because there was no reasonable apprehension of death or grievous hurt when he was seized by the deceased woman; neither could it be brought under subsection (2) of section 222 because it could not reasonably be said that in killing her the appellant was exercising a right to self defence in good faith without premeditation, and without any intention of doing more harm than was necessary.
The effect of sections 59, 60 (60,62 and 65 of the Penal Code is that one may kill if one must to repel a grave assault on personal liberty, honour, or life and limb, and it is not an offence killing is done within the limits laid down in section 62, of doing no more harm than is necessary.
APPEAL from the High Court of Northern Nigeria sitting on appeal from a Native Court.
R. O. Gaji for the Appellant.
K. C. Nadarajah, Crown Counsel, for the Respondent.
Bairamian, F.J. (giving the reasons for the judgment):-The appellant as convicted of culpable homicide punishable with death and sentenced to death by the Shehu of Bornu's Court on the 4th June, 1962; his appeal to the High Court of the Northern Region was dismissed on the 16th November, 1962; and his further appeal to our Court was dismissed at the hearing at Kaduna on the 6th March, 1963, for reasons which will now be given.
It was about midnight on the 15th to 16th April, 1962, at Ngalori, in the Marte District, that he killed one Jime, a woman, in her house That the appellant admitted but he denied the version given by Zara, the daughter-in-law of the deceased. Zara's version was that she was waked up by the deceased's cry for help; she ran out of the room and found them wrestling; her mother-in-law is holding the appellant and she fell down at once; when she, Zara, got hold of him, he stabbed her also, and she fell down, too, and could no longer hold him. Zara survived; Jime died immediately: she had been stabbed on the right side of her chest and on the inside of her right arm in. The appellant asked Zara whether when he entered the room she was asleep or awake; she said she was asleep; he put no more questions.
His version was that as he was leaving the village of the deceased, about midnight, he met Zara's elder sister, who told him that Zara wanted to see him; so he went and called Zara, who answered; he entered, she asked him to sit on the bed, but he refused; he told her if she had any message, she might let him know; she again asked him to sit on the mat, but he refused and told her that if she had no message to give him, he could go, and then began to go out; he felt a man holding him: it was the deceased Jime; he thinking that they plotted to kill him, tried to free himself by drawing out his knife backwards, and it got at the deceased, who released him, and he ran out; later he was held by another person at a distance, and he again stabbed backwards, but he did not see who it was that he stabbed; and so he got away and fled, but in the afternoon he came back and gave himself up.
He admitted that he knew he was going to Danna's house, and that Zara was Danna's wife; that he found the door shut, and that all the people of the house were asleep. His explanation of why he stabbed was that he thought they had made a plot against him.
The elder sister, Anga, gave evidence. She denied telling the appellant to go to Zara, or that Zara had asked her to do so.
The trial Court accepted Zara's version, and did not believe that her elder sister told the appellant to go to Zara; the court observed that Zara had no idea of his being in the house because she was asleep, and he even stabbed Zara, who tried to catch him after he had stabbed her mother-in-law; and the judgment goes to say:-
"The court found no evidence that you went to Zara's house in good faith as you went to her in the midnight and even if you went to commit adultery not for theft you know that Zara is a married woman. You stabbed the deceased when she met you as you felt that they plotted to kill you. How could they plot if you were really asked by Zara to visit her. So the court has believed that you went to the deceased house intentionally and killed her for no reason."
"Intentionally-", in that context, means with intent to commit an offence; but as the trial Court did not believe that Zara had sent a message to the appellant to go to her no question of adultery truly arises.
As already, stated, the High Court dismissed the appeal. The grounds of the further appeal to our Court are:-
1. The court erred in law by holding on the evidence that `'the case of Durwan Geer" was directly in point, and that the appellant could not claim the protection of subsection (2) of section 222 and sections 59 and 60 of the Penal Code.
2. That the decision is unreasonable and cannot be supported having regard to the evidence.
The argument in support of the 2nd ground was that Zara should not have been believed; she must be a liar, it was submitted. The trial Court gave reasons for believing her which in our opinion were good, and that ground fails.
The provisions cited in the first ground are:-
"59. Nothing is an offence which is done in the lawful exercise of the right of private defence"
"60. Every person has a right, subject to the restrictions hereinafter contained, to defend-
(a) his own body and the body of any other person against any offence affecting the human body"
(b) is on defence of property; not relevant here).
"222. (2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private offence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence."
From the finding of the trial Court it is clear that in its view the appellant stabbed to kill, and his case came within section 221(a) of the Penal Code. `The court said that he killed her for no reason, which means that he could not claim any benefit of excuse or mitigation.
The provisions on private defence of person or property are given in sections 59 to 65. When the right of private defence arises under section 60, and there is no time to have recourse to the protection of the public authorities (section 63), no more harm should be done than is necessary to inflict for the purpose of defence (section 62). Section 65 provides that:-
"65. The right of private defence of the body extends, under the restrictions mentioned in sessions 62 and 63, to the voluntary causing of death only when the act to be repelled is of any of the following descriptions, namely-
(a) an attack which causes reasonable apprehension of death or grievous hurt; or
(b) rape or an assault with the intention of gratifying unnatural lust; or
(c) abduction or kidnapping."
In effect, one may kill if one must to repel a grave assault on personal liberty, honour, or life and limb, and it is not an offence when the killing is done within the limits laid down in section 62 of doing no more harm than is necessary.
On the other hand, it is an offence if the killing exceeds the limits laid down, and then the question of punishment arises. Should the killer be sentenced to death for his offence; or should be liable to a lesser punishment? Having done an act which amounts to culpable homicide punishable with death under section 221, he would have been liable to sentence of death, but for the exception in his favour provided in subsection (2) of section 222, which makes his offence non-capital. The text has been quoted; it recognises that a person who kills in the bona fide exercise of the right of private defence when there was no need to, should not be punished with death. This case is no more heinous than that of one who kills through loss of self-control upon grave and sudden provocation within the provisions of subsection (1) of section 222: it is the case of one who exceeds the limits of private defence in good faith through error of judgment. That we apprehend to be the scheme of the Penal Code, but we did not have the benefit of argument on the subject.
'The appellant invented his story of being invited by Zara to lend colour to his apprehension of a plot against him when seized by the deceased; the question of private defence could not be considered in that untrue light. Mr Gaji posed the question whether a burglar has a right to defend himself. Put in those scant terms, it is academic: a question cannot be considered except in light of the facts of the case before the court.
The facts are that the appellant entered by stealth, about mid-night, the house of the deceased, which was shut and of which the inmates were asleep, with the intention of committing an offence, and when caught by the deceased, he stabbed her mortally to effect his escape. The question in limine is whether;- the fact that the deceased woman seized him was a lawful act of arrest: if it was, then it seems to us that no question of self-defence could arise. It would be most strange and, indeed, most dangerous, if a person when lawfully caught in the commission of a grave offence could kill to effect his escape and plead that he was acting in self-defence. The wording of section 60 of the Penal Code is "against any offence affecting the human body"; it is such an offence which gives rise to the right of offence, but learned Counsel for the appellant did not address us on that point, or refer to the relevant provisions on the right to arrest conferred by section 28 of the Criminal Procedure Code on private persons, which provides (partly) that:-
"28. Any private person may arrest:-
(a) any person committing in his presence an offence for which the police are authorised to arrest without a warrant'."
This harks back to section 26, which (partly) provides that:-"26. Any police officer may arrest:-
(a) any person who commits an offence in his presence notwithstanding any provision in the third column of Appendix A that an arrest may not be made without a warrant."
According to Appendix A, the police may arrest without warrant for anyone of the offences specified in sections 349 to 356 of the Penal Code, which relate to house trespass and aggravated forms of it; from which it appears that the deceased was exercising a lawful right of arrest in seizing the appellant and was not committing any offence in so doing which gave him any right of private defence.
It seems to us that the plea of self-defence fails at the threshold of it, and no question truly arises either on whether the appellant had any reasonable apprehension of death or grievous hurt or whether he exceeded the limits of self-defence. In any event, we would add that the case could not be brought under section 65 because there was no reasonable apprehension of death or grievous hurt when he was seized by the deceased woman; neither could it be brought under subsection (2) of section 222: for the mitigation in it operates where in the bona fide exercise of the right of private defence that right is exceeded, and the homicide is non-capital upon condition that the offender is exercising that right:-
(i) without premeditation; and
(ii) without any intention or doing more harm than is necessary for the purpose of such defence.
Here we have a person who entered by stealth, at midnight, a house which was shut and of which the inmates were asleep, with the intention of committing an offence; he was carrying a knife, and when he was seized by the deceased woman he stabbed her mortally to effect his escape. Can it be said reasonably that in killing her he was exercising a right of self-defence in good faith without premeditation, and without any intention of doing more harm than was necessary? It cannot. We agree with the view of the trial Court that he had no reason to kill the deceased.
We have considered the case in light of sections 65 and 222(2) on the assumption, favourable to the appellant, that they could apply; we have done so because there was no argument on the right of arrest, on which we hope to hear argument some other day. Upon any view the conviction for culpable homicide punishable with death was correct, and the dismissal of the appeal to the High Court was right. We therefore dismissed the appeal at the hearing.