ONWE V. THE STATE

• Pages: 375-388

375

NIGERIAN SUPREME COURT CASES

[1975] N.S.C.C.

ONWE V. THE STATE

5

ITESHI ONWE

APPELLANT

V

THE STATE

RESPONDENT

10

SUIT NO. SC 380/1974

SUPREME COURT OF NIGERIA

ALEXANDER,

C.J.N.

FATAI-WILLIAMS,

J.S.C.

SOWEMIMO,

J.S.C.

14th November, 1975

Criminal Law - Murder - Whether defence of self defence available - Circumstances

in which prosecution's written statement is relevant.

ISSUES:

1.

What must a trial court take into consideration in deciding whether an accused's

act of murder falls within the ambit of Section 286 of the CRiminal Code as

being lawful in self-defence?

2.

Is the written statement of a prosecution witness relevant to proceedings at which

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he gives evidence?

FACTS:

The son of the accused saw the deceased stealing yams from the accused's

yam barn and reported to the accused who took a stick and ran to the yam barn.

When the deceased saw the accused coming, he ran out of the yam barn, threw

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away the yams he was carrying and brandished a machet which he was holding.

He tried to attack the accused with the machet. The accused got close to him,

knocked off the machet from his hand with his stick, and hit him on the head with

the same stick. The deceased died immediately from the injuries he sustained as

a result. He was charged and convicted of the murder of the deceased. He ap-

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pealed to the supreme court.

HELD:

1.

It is open to any person assaulted to defend himself. Where the nature of the

assault is such as to cause a reasonable apprehension of death or grievous

harm, it is lawful for the assaulted person to use any force necessary to defend

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himself against his assailant even though such death may cause death or

grievous harm. In the instant case, the deceased was armed with a machet

which he brandished at the accused, which spurred the accused into striking

him with the stick. The trial Judge ought to have taken all this into conisderation

in deciding whether the act of the accused constituted self-defence or not.

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2.

That the written statement of a prosecution witness is only relevant to the

proceedings at which he gives evidence where the witness proves "adverse" or

is shown to have made, at other times, a statement inconsistent with his present

testimony; and that such a statement is not evidence against the accused with

respect to the allegation it contains but is only relevant as to the credibility of

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the witness who made it.

Per

Sowemimo, J.S.C.

(Dissenting):

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