By Emmanuel Ogebe
“In the circumstances, I am of the view that the defense of self defense avails the Appellant and that his response was not excessive. It is my view that the judgment of the two lower Courts should be set aside as a miscarriage of justice.
“I set aside the judgment of the Court below delivered on 27/6/2022 in Appeal No. CA/YL/158C/2021.
“I acquit and discharge the Appellant. Since I appear to be in the minority, I recommend this Appellant as a proper candidate for the Governor of Adamawa State to exercise his prerogative of mercy. Appeal Allowed” – Helen Ogunwumiju, JSC (minority judgment).
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Three weeks after his death sentence was upheld by the Supreme Court, the dissenting judgment of the most senior Justice on the panel, inexplicably omitted from the released certified true copy (CTC), has surfaced, further vindicating Jackson and millions of people mystified by the majority opinion.
Per Her Lordship Helen Ogunwumiju, JSC, “In the circumstances, I am of the view that the defense of self defense avails the Appellant and that his response was not excessive. It is my view that the judgment of the two lower Courts should be set aside as a miscarriage of justice.
“I set aside the judgment of the Court below delivered on 27/6/2022 in Appeal No. CA/YL/158C/2021.
“I acquit and discharge the Appellant. Since I appear to be in the minority, I recommend this Appellant as a proper candidate for the Governor of Adamawa State to exercise his prerogative of mercy. Appeal Allowed.”
What a beautiful judgment! Millions of Nigerians and others worldwide will now realize they’re not confused after all and that there are still voices of reason in our courts. This judgment will be Her Lordship’s most famous verdict and her legacy opinion. Her name will be renowned because of this. A wise Daniella has come to judgment. God bless her!
Conversely, unfortunately, in the court of public opinion, once again in a judicial poll, the “election” winners did not reflect the majority of the Nigerian population and the opinion that best embodied the will of the people did not carry the day.
I will just highlight a few excerpts of the salient points Her Lordship brilliantly made (numbering mine):
Dissenting judgment delivered by Helen Moronkeji Ogunwumiju, JSC
“I have read the judgment of my learned brother MOHAMMED BABA IDRIS, JSC and I beg to depart from his Lordship’s view and to allow the appeal.
“The deceased pursued him and stabbed him at the back of his neck and when he kicked the deceased to get away, the deceased stabbed him on his left leg.
“At the trial, the learned trial Judge confirmed that the Court, the prosecution and defence counsel saw the wounds inflicted by the deceased on the Appellant on the back of his head and on his left leg.
“That evidence is on page 77 of the record. That evidence was never debunked under cross examination.
“There was admittedly an expansion of the details of the incident by the Appellant on oath, but there was no contradiction in respect of the specific important facts of the incident ….
“The only difference which has been made much of and which is irrelevant in a plea of self defence is that at the Police Station the Appellant was recorded as stating that ‘I stabbed him in the throat thrice with intention to kill him’.
My Lords, in self defence, the mens rea is the intention to kill in order to save oneself and the actus reus is the action itself. The intention to kill at that material time cannot negate the defence of self defence ….
“The fact that he told his truth consistently of knowingly stabbing the deceased who first attacked him with a knife and had struck him twice cannot be used against him.
“The Court cannot believe the portion of the statement which is against a defendant and disbelieve the portion which favours him. The statement must be admitted and evaluated in toto ….
“There seems to be a misunderstanding of the salient ingredient of the plea of self defence and it is that the Defendant intentionally killed the deceased in self defence .…The conception of an intention to kill in order not to be killed cannot constitute pre-meditated murder.
“It appears that both Courts below forgot the evidence of the Appellant on oath which was not contradicted successfully under cross examination that the deceased had attacked him first, when he tried to run away from the deceased, the deceased stabbed him on the back of the head with the knife and when he kicked the deceased to get away, the deceased stabbed him on the left leg.
“Proportionality can be difficult to measure particularly when there is no referee during the cause of the fight.
“The case being made by the prosecution that there is no doctor’s report to back up the story of the Appellant is misconceived. Suffice it to say that during the trial, the Court noted on page 77 of the record as follows:
‘“Court – I would like to see the wounds of the stabbing (I have seen the scare at the back of his head and the scene (sic) at the back of his left leg). Inspected it with the prosecution and Defendant counsel.’
“We must recollect that the judgment of the trial Court which had seen the wounds inflicted on the back of the head and the left leg of the Appellant did not disclose that it disbelieved the story of the Appellant that he had already been wounded twice by the deceased.
“I cannot agree that a reasonable man who had been stabbed twice already and who was still being attacked with a herdsman’s stick would hesitate to fight for his life. It would have been a different thing altogether if there had been an intervening period in the fight.
“The Appellant took advantage of the fact that the person who had stabbed him on the back of his head, an equally dangerous place to be stabbed, had become temporarily weak and took the opportunity to save his own life. How was he to know that the deceased would not stand up and pursue him as he had done earlier?
“I have serious doubt that a person attacked on his own farm who tried to disengage from the fight but was pursued and stabbed had no right to self defence in the circumstances.
“The reasoning that he should have fled a second time from his own farm which was an open field when he was not the aggressor cannot be how a reasonable man would react, not knowing whether or not he would be further pursued by his assailant.
“The Appellant was entitled to defend himself from an assailant who had trespassed on his land, attacked him first after he tried to run away.
“My Lords, the prosecution had to prove that the defendant did not kill the victim in self-defence. Thus, the onus to negative each defence of accident, self-defence and provocation properly raised is on the prosecution.
“The prosecution in this case has not been able to adduce contrary evidence.
“Where the deceased was the aggressor and was physically bigger than the defendant, who was after running from the initial onslaught had to engage the deceased who chased him and was able to wrest the weapon from the deceased, his use of the same weapon in order to save his life in the absence of positive proof to the contrary avails the defendant with the defence of self defence ….
“In the circumstances of this case, I do not think the Appellant was in a position to determine and analyze which part of the body of the deceased to stab. He had a right to want to get away from his attacker and to ensure he was no longer pursued.
“As stated earlier, at that point of reaction, would a reasonable man who had already been stabbed twice by a trespasser on his land think twice about stabbing his assailant anywhere available? I think not.
“I do not agree that the mere fact of stabbing the deceased three times in the heat of the moment instead of once, constitutes malice aforethought .…
“Under our legal system if a man is in danger of serious bodily harm he may use such force as he believes is necessary to prevent and resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing was intentional.
“The deceased here was a trespasser on the land of the Appellant. I believe the misapprehension of the two lower Courts in finding the Appellant guilty because he did not run away after he gained the upper hand is from the unwarranted and unreasonable interpretation of the need for the person attacked to disengage no matter the circumstances.
“As stated earlier, in this instance, the Appellant had disengaged once and was pursued. Did he not have the right to stand his ground against further attack on his own farm?
“I am of the view that he reserved the right to stand his ground on his own land pursuant to Section 33(2)(a) of the 1999 Constitution of Nigeria.
“I do appreciate the point that vengefulness or excessiveness in the defence of that right must be discouraged. Each case must be treated according to its own peculiar facts. I can find no vengefulness in the action of the Appellant.
“In the circumstances, I am of the view that the defence of self defence avails the Appellant and that his response was not excessive. It is my view that the judgment of the two lower Courts should be set aside as a miscarriage of justice.”
The facts and the law
On the facts and the law, Sunday Jackson wins on the merits based on Her Lordship’s incisive and scintillating elucidation of the issues.
This is aside from the over 30 disturbing flaws we have detected in the preceding majority judgement including stupefyingly the fact that Jackson was charged, tried and convicted of only two stab wounds at the trial court but ordered to be hanged by the Supreme Court for three stabs.
Respectfully, where did the apex court get the extra stab from for which he was neither charged nor convicted in the high court upon which he must now be hanged?
As Her Lordship, Ogunwumiju, JSC rightly pointed out, facts are within the realm of the trial court and can’t be substituted by the appellate court.
It would appear to me that the High Court Judge Fatima Tafida may have misdirected the appellate courts into this grievous error by injecting her own opinion or misconception of three stabs into a case where the defendant was clearly only charged with two stabs.
In the light of this fatal factual flaw and the gross perversion of justice it has occasioned on the right to life of citizen Sunday Jackson to be unjustly taken, I humbly recommend that:
Governor Adamu Fintiri accede to the plea of the most senior Justice on the panel Ogunwumiju, JSC to grant Sunday Jackson clemency post-haste especially in the spirit of the ongoing Sallah Eid Mubarak.
The Supreme Court should urgently undertake a review of the judgment in Sunday Jackson v the State given the error by the trial court on Jackson’s two stab charge which misdirected the Supreme Court’s decision.
One of the successful reviews was in the case of BAR ORIKER JEV & ORS. V. IYORTOM & ORS. [2015] NWLR (PT. 1483) 484.
The Supreme Court had in an earlier judgment in the matter ordered that [Independent National Electoral Commission] INEC conduct a run-off election.
During the review, the court discovered that it made the said order based on a wrong interpretation of Section 133(2) in conjunction with Section 141 of the Electoral Act 2010 (as amended).
On a post-judgment application by one of the parties, the Court set aside the earlier order. It instead ordered the INEC to issue the applicant a certificate of return.
The Court further held that:
(1) There is no constitutional provision for the Supreme Court to review its judgment as Section 235 of the Constitution gives a stamp of finality to any decision of the Supreme Court.
(2) There is, however, as the Supreme Court has decided in several cases, an inherent power to set aside its judgment in appropriate or deserving cases but that such inherent jurisdiction cannot be converted into an appellate jurisdiction as though the matter before it is another appeal intended to afford the losing litigants yet another opportunity to restate or re-argue their appeal.
(3) The Supreme Court avoided any direct holding on whether it acted per incuriam (without regard to existing law or precedent) in making the former consequential order, which it was called upon in the application to set aside. Rather, the Court said that it had inherent power to set aside the consequential order, which it had made on the basis of a wrong interpretation of Sections 141 and 133 of the Electoral Act.
Perusing the black ink of that ratio, it is clear that the Supreme Court can set aside its judgment in special and rare circumstances and this can only be done by the Court not by an appeal.
It is therefore evidently clear that where the ground exists, Supreme Courts of basically all jurisdictions will not shy away from setting aside their judgements or orders and substituting them with others.
The ultimate end is justice, not the prestige of the Court.
Application of the Slip Rule in other jurisdictions
The United States Supreme Court has in a few instances set aside its own decisions or judgments.
In JONES V. CITY OF OPELIKA (II), 319 U.S. 103 (1943) the Court vacated certain orders made in its judgement in JONES V. CITY OF OPELIKA 316 U.S. 584 (1942), having found on the application and proper examination of the law, that it arrived at the earlier decision wrongly.
This later decision was based on its decision in Murdock v. Pennsylvania, 319 U.S. 105 (1943) which had been brought to its notice. https://lawpavilion.com/blog/reviewing-supreme-court-judgments-in-nigeria-is-it-possible-an-introspection-of-the-slip-rule-principle/
In the instant case, the Court will discover that it upheld the death sentence order based on a wrong, mistaken or erroneous assumption by the trial judge that Jackson was liable for three stabs when in fact he was only charged with and convicted of two stabs which the Supreme Court has already stated would not be excessive in this very case to deny him a successful self defense claim.
Emmanuel Ogebe, ESQ
