Continued from yesterday
Under the Penal Code, killing occasioned by the use of excessive force in private defence is manslaughter only and not murder. Section 222 (2) of the Penal Code provides: “…culpable homicide is not punishable with death if the offender in the exercise (in good faith) of the right of private defence exceeds the powers given to him and causes death…”
 
In the instant case, the Supreme Court, seemingly applying the strict interpretation of the law and the objective (reasonable man’s) test, held that Jackson applied excessive force in repelling his attacker.  But this conclusion does not reflect a balanced appreciation of the totality of the facts of the case, as the apex court seemed to have discountenanced entirely the spirit of the deceased’s action.
 
It was not in dispute that the deceased, wielding a deadly weapon, viciously pounced on Jackson with the intent to kill. Caught in an unexpected scuffle, Jackson would seem to be left with the option of either surrendering to his attacker or defending himself.  He chose the latter – a decision that did not sit well with the apex court, the decision of which appeared based on a mental depiction of the encounter which incorporated many assumptions that may not be flawless. It paints a picture of the deceased attempting to attack Jackson while clutching a dagger in his raised hand but conveniently intercepted and disarmed.

The mental scene created is that of the combatants standing during the encounter, thereby placing Jackson in a position where he could have easily fled. This illustration contradicts the uncontroverted evidence that was presented before the court. 
  
As Jackson recounted, he wrested the weapon from the deceased while entangled in a wrestling contest. As defined by experts, wrestling is a fight that involves grappling with an opponent to force him to touch the ground with some part of the body while striving to obtain a position of advantage through different throws or techniques. 
 
The judgment did not capture the respective wrestling positions of the combatants at the time the attacker was disarmed. Similarly, there is nothing in the pleaded facts that suggests that Jackson could have successfully wriggled himself out of the reach of his adversary one-handedly (since his other hand was holding the retrieved weapon) without further exposing himself to danger. The court automatically assumed he had the advantage, having retrieved the weapon, even if by sheer twist of fate,
 
No attention was given to the possibility that Jackson could not have freed himself without first incapacitating the deceased. Also, the possibility that the deceased could have regained the weapon during the wrestling was not entertained. The finding that the heat of passion cooled down when the weapon was retrieved is presumptuous and erroneous. It presupposes that the parties broke from the fight during the retrieving process. No such intervening period occurred! 
  
The undisputed evidence shows that the retrieving and stabbing acts happened nearly contemporaneously. The stabbing occurred immediately after the deceased was disarmed, hence, there was no time for Jackson’s suddenly provoked temper to subside. The stabbing took place when the heat of passion was fully charged. 
 
Indeed, there is a plethora of fundamental questions begging for answers. Since Jackson, according to the court, failed the reasonable force test, why did the Supreme Court not reduce the offence to manslaughter as permitted by the Penal Code under which he was tried? Why did it not adopt the subjective test, knowing full well that it is almost impossible for any person to maintain rationality when suddenly faced with an imminent threat to life? Was the stabbing not proportionate to the risk (of death) posed by the assailant? Was Jackson’s action not inspired by a reasonable apprehension of death? Was the force applied by Jackson not necessary to prevent his death?

Given that the convict and the deceased belong to different groups with a long history of violent (farmer-herder) rivalry, and the fact that the herder could have suspected that Jackson had killed his cattle or was complicit in killing it, would retreat have permanently eliminated the threat posed to Jackson’s life or merely postpone the evil day? Is taking the life of a person who first attempted to kill you not fair and square? 
  
As Rusell W.O. puts it: “A man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against his person, habitation or property. In these cases, he is not obliged to retreat and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them, he happens to kill his attacker such killing is justifiable.”
  
As a policy-making court, the Supreme Court missed a golden opportunity to expand the scope of Nigerian jurisprudence on self-defence. There should be instances where failure to retreat is not fatal, particularly where the person attacked is on legitimate ground, his home, his place of work or his farm. Assuming, for instance, that the deceased had attacked the convict in the home of the convict with his family, would it have been considered reasonable for the man to abandon his home and retreat (or run away) because he wanted to avoid killing his assailant? Would the Supreme Court have come to a different conclusion in that scenario? 
  
People should be allowed to defend themselves without undue fetters as obtainable under the ‘Stand Your Ground’ principle in the United States of America. This principle provides immunity from prosecution with no duty to retreat for a person who is threatened with harm while lawfully in a place and who uses force, including deadly force, in the reasonable belief that such force is necessary to prevent their own or another person’s death or great bodily injury. 
   
On its face value of strict application of the law, the Supreme Court judgment appears logical but it is completely devoid of substantial justice. As canvassed by the dissenting judgment of Justice Ogunwumiju, this is a proper case for the government of Adamawa State to exercise the prerogative of mercy and commute Jackson’s death sentence to imprisonment or pardon. Jackson is yet another victim of failed governance. If the government at all tiers were alive to their primary responsibility of securing the lives and property of Nigerian citizens, and particularly if the government had adequately addressed the protracted conflict of herders and farmers across the country, the Jackson unfortunate incident would have been hypothetical. 
Concluded.