“In the case of a soldier in Northern Ireland in the circumstances in which Private
Clergy found himself, there was no scope for graduated force, the only choice being
between firing a high- velocity rifle which if aimed accurately, was almost certain to kill
or injure and doing nothing at all”
In considering the concept of necessity, the question to be determined is given the
nature of the threats what are the minimum actions necessary to respond to the
threats.
This Court takes judicial notice of the fact that Boko Haram is a terrorist group
with the capacity and tendency to inflict deadly unprovoked injuries on human
beings and properties. The Applicants have contended that the Security Agents of
the Defendant ought to have used non-lethal force in incapacitating the Boko
Haram Group.
The Applicants contended that they were unarmed while the Defendant stated that
they were first shot at by the suspects and they reacted in self- defense.
It should however be noted, that facts stated in pleadings are not proof and, unless
where they are admitted, the burden of proof is on the person who will fail if no
evidence is offered. Self- defense is a judicial concept that needs certain factors
for proof. The Defendant pleaded self-defense i.e. while they were approaching
the uncompleted building they were fired at by the suspects.
However, there is no evidence of such a firing including, recovered guns, bullet
or its pellets tendered in before the Court as proof of the circumstances. The
Applicants clearly stated that they were unarmed, while the Defendant asserted
that the suspects fired at them. The burden of proving self-defense is on the
Defendant and this burden has not been satisfactorily discharged. Indeed as earlier
noted, pleading is not evidence. There must be evidence that the Defendant acted
in self-defense against a powerful terrorist group in a non – conflict environment.
This burden has not been satisfactorily discharged by the Defendant.
Reasonableness suggests that an officer of any sort must act without passion or
prejudice, in a non-conflict zone, consideration should have been made with
regard to persons who might have occupied the place in error and who are not
among the suspect terrorists. The international minimum have included the use of
warnings, a shot fired in the air, as well as other methods of information to give
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