LEGAL PRINCIPLE: CRIMINAL LAW – Private Defence – Apprehension of Death or Grievous Hurt
PRINCIPLE STATEMENT
If an accused has been attacked and apprehends that the deceased was going to cause him grievous hurt or death, the defence of private defence is available under sections 65 and 59 of the Penal Code.
RATIO DECIDENDI (SOURCE)
Per Uwais, JSC, in Kwaghshir v. The State (1995) NLC-351994(SC) at p. 12; Para D.
"It is, therefore, clear from the testimony of the 1st appellant that if he had been cut five times with a knife by the deceased who was on top of him, the 1st appellant was justified in having the apprehension that the deceased was at least going to cause him grievous hurt if not death. In my opinion, the defence provided by section 65 read with section 59 of the Penal Code is available to the 1st appellant."
EXPLANATION / SCOPE
Private defence is available where there is a reasonable apprehension of death or grievous hurt. The accused must not have been the aggressor. The principle applies under the Penal Code and Criminal Code. The force used must be proportionate. The court will examine the circumstances of the attack. The defence may reduce murder to manslaughter or lead to acquittal. The rule protects the right of self-defence. The prosecution must disprove the defence.