Principles

·  Criminal Law—Arrest—Necessary force—Exceeding force permitted by law

·  Criminal Law—Exceeding the right of private defence—Knife used to repel attack with stick

·  Criminal Law—Sudden fight—Mutual provocation—Blame for fight impossible to assess

Deceased found accused illegally in his house and hit him with a heavy stick. Accused stabbed deceased fatally in the fight which followed.
Held:
(i) When deceased found accused illegally in his house, he was entitled to arrest him and to use force reasonable and necessary to that purpose, but the immediate beating of accused was an unlawful attack.

(ii) To repel an unlawful attack on his person, accused was entitled to use force necessary to repel the attack, but to resort to a knife to repel an attack with a stick was exceeding the right of private defence within the meaning of Penal Code, s. 249 (2)
Obiter dictum: Penal Code, s. 249 (4), applies only where there is such mutual provocation as makes it impossible to apportion the blame between the two combatants.

Judgment

      M. A. Abu Rannat C. J. October 8, 1964:- Before I discuss the law, I must set out the facts which are supported by sufficient evidence and which are accepted and believed by the court. These facts are:

      On August 27, 1962, at about 10 or 11 p.m., the deceased entered the grass hut where his wife was sleeping. He had been absent from his village for five or six days. His wife was sleeping on a bed with a mosquito net over it. The deceased was carrying a torch, and as soon as he entered, he saw with the torchlight the accused sitting on the wife’s bed. He had a heavy stick in his hand, and he immediately struck the accused with it on the forehead. The accused stood up and stabbed the deceased on the arm. Then the deceased drew his knife and stabbed the accused. After this both accused and deceased continued to stab each other indiscriminately for a long time, until the father of the deceased’s wife arrived and stopped the fight. It was found that accused stabbed the deceased eleven times, while the deceased stabbed the accused nine times. The wounds on deceased were fatal, and deceased died the next day in the afternoon.

      It is clear that accused caused deceased’s death and that he intended to cause his death.

      The first and important point is whether the accused was acting in self-defence and, if so, whether he exceeded his right.

Commenting on Sudan Penal Code, s. 55 Professor Gledhill stated:

      “There are two possible theories :( a) a man may in defence of liberty, person, or property, use such force as is necessary to attain its object and which does not cause injury disproportionate to the injury intended to be prevented (b) in repelling an unlawful attack on his person or liberty a man may use so much force as is necessary to repel the attack but may not cause grievous bodily harm or death except to defend life, limb or permanent liberty”: Gledhill, Penal Codes of Northern Nigeria and the Sudan 131 (1963).

      Let us apply this theory to the facts of this case.

      Deceased entered the house and saw the accused sitting on a bed beside his wife. He knew accused well as he was living with him in the same locality. The accused no doubt committed house trespass, and deceased was entitled to arrest him at least to furnish evidence against him, but he is not entitled to beat him unless the accused resisted his arrest. Instead of arresting him, or calling for witnesses to prove his identity or have recourse to public authority such as the sheikh of the village, he struck him with a bamboo stick on the forehead, and accused retaliated by stabbing deceased on the arm. After this, each of them continued to stab each other. In such circumstances, the accused no doubt acted in self-defence.

      I understand very well that deceased was under grave and sudden provocation when he struck the accused with the stick, but this does not deprive the accused from exercising his right in defending himself.

      The presiding magistrate (Mohamed Mahmud Abu Giseisa D.J.) advanced very good and sound argument as to the right of accused in repelling the attack of the deceased, but to my surprise, he said at the end of the argument that he was not acting in self-defence. He should have found that accused was exercising his right to self-preservation.

      The next point is whether accused exceeded that right. In my view he did. He was carrying a stick when he was hit by deceased, and instead of using a knife, he should have used the stick. Here he exceeded the right given to him by law.

      I therefore alter the finding to one of guilty under Penal Code, s. 253.

      The presiding magistrate found that accused was entitled to the benefit of Penal Code, s. 249 (4). Here he is wrong. This exception applies when there is mutual provocation; there must be mutual aggravation so that it would be difficult to apportion the blame between the two combatants. In this case, the deceased did not provoke the accused, nor did he annoy him. It was the accused who provoked the deceased when the latter found him late at night sitting on the bed with his wife.

      As to sentence, this is a very bad case, in which the accused created

      a situation which led to the death of an innocent husband, and I therefore think he must go to prison for life.