Nasiru V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant, who allegedly caused the death of one “Hassan Ismail by using a cutlass and inflicted a serious cut on his thigh”, was tried, convicted and sentenced to death by the Sokoto State High Court for the offence of culpable homicide punishable with death. On appeal, however, the Court of Appeal reversed the trial Court’s decision, and reduced his sentence to 10-years imprisonment for culpable homicide NOT punishable with death, and the Appellant has now appealed to this Court with a Notice of Appeal containing two Grounds of Appeal.

He distilled two Issues for Determination from the two Grounds of Appeal in his Brief of Argument, however, the Respondent objected to the issues formulated by the Appellant from the Grounds of Appeal. It submitted that Ground 2 is an omnibus ground of appeal, which is a general ground that contends that the decision in question, is against the weight of evidence; that Issue 1 cannot arise from Ground 2, since an omnibus ground cannot give rise to an issue raising specific points of law, citing Calabar East Co-op. V. Ikot (1999) 14 NWLR (Pt. 638) 225, Henkel Chem. Ltd V. A.G. Ferrero (2003) 4 NWLR (Pt. 810) 306; and an omnibus ground cannot be used to challenge specific findings of fact or law or finding on a document, citingNdiwe V. Okocha (1992) 7 NWLR (Pt. 252) 129, Abdullahi V. Oba (1998) 6 NWLR (Pt. 554) 420, Akinlagun V. Oshoboja (2006) 5 SC (Pt. II) 100, Osolu V. Osolu (2003) 6 SC (Pt. I) 1.

It further submitted that since Ground 1 is challenging the finding of the Court of Appeal, that the Prosecution proved its case beyond reasonable doubt by circumstantial evidence, and his Issue 2 questions whether the defence of self-defence did not avail the Appellant so as to entitle him to be discharged and acquitted, there is no correlation between the said Ground 1 of the Grounds of Appeal and his Issue 2, therefore, the said Ground 1 cannot give rise to Issue 2 distilled by him. It is its contention that the two Issues formulated by the Appellant are incompetent and it, therefore, urged the Court to dismiss the appeal.

The Appellant did not file a Reply Brief, but Respondent raised a vital question – what is the Issue(s) for Determination in this appeal? It is an elementary principle that grounds of appeal arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal, arise from the grounds of appeal, which emanated from the decision appealed against — see Ibigbami & Anor V. Military Governor, Ekiti State (2004) 4 NWLR (Pt. 863) SC.

The Respondent is right that an omnibus ground of appeal is not against a specific finding of fact or any document, and cannot be used to raise any issue of law or error in law – see Akinlagun V. Oshoboja (supra) and Osolu V. Osolu (supra), wherein this Court explained that:

When a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced at the trial Court not against any specific issue. The complaint is only concerned with the appraisal and evaluation of all the evidence; not the weight to be attached to any particular piece of evidence.

In this case, the Appellant complained as follows in the said Ground 2:

The affirmation by the Court of Appeal that the Prosecution proved its case beyond reasonable doubt is unwarranted and cannot be supported having regards to the evidence adduced at the trial.

He indicated at page 5 of his Brief of Argument that Issue 1 is “distilled from Ground 2″, of the Grounds of Appeal. The said Issue 1 questions:

Whether the lower Court was right in not entirely allowing the Appeal of the Appellant before it, having regard to the failure of the Prosecution to prove the offence against the Appellant at the trial Court upon credible and legally admissible evidence.

Obviously, the complaint in Ground 2 of the Grounds of Appeal is not against the weight to be attached to any particular piece of evidence, and the Appellant did not refer to a specific finding in the said Issue 1. The question raised by Issue 1 is related to the Appellant’s complaint, touching on weight of evidence in Ground 2 of the Grounds of Appeal, therefore, the Respondent’s objection on this point totally lacks merit.

The Respondent also objected to Issue 2 that Appellant distilled from Ground 1 of the Grounds of Appeal, wherein he complained that:

The Court of Appeal erred in law when it held that:

The circumstantial evidence in the instant case leaves no room for reasonable doubt that the Appellant was the one that caused the injury to the deceased, which resulted in the death of the latter. The Prosecution had proved beyond reasonable doubt that the Appellant caused the death of the deceased.

PARTICULARS

1. None of the six (6) witnesses called by the Prosecution was an eye witness to the fight between the deceased and the Appellant from the Records of Appeal before the lower Court.
2. There was a material contradiction between the evidence given by Nura Rabiu (PW3) and the statement made by the said witness, tendered as Exhibit D during trial.
3. There was no sufficient piece of evidence outside the confessional statement tendered as Exhibit E & E1 during trial to ground a conviction.
4. The circumstantial evidence relied upon by the trial Court and affirmed by the lower Court left room for doubt about whether the Appellant’s action caused the injury that led to the death of the deceased.
5. The lower Court did not dispassionately consider all defences put forward by the Appellant during trial before affirming that the Prosecution proved its case beyond reasonable doubt.

Issue 2, which the Appellant distilled from the said Ground 1 questions:

Whether from the evidence on the Record, the defence of self-defence did not avail the Appellant as to entitle him to be discharged and acquitted of the offence as charged.

Apparently, in arguing that there is no correlation between the said Ground 1 and Issue 2, the Respondent did not take cognizance of the Particulars of the said Ground 1. It is settled that Particulars are the specifications of errors or misdirection which shows what a complaint against the decision is. They are the specific reasoning, finding or observations relating to an error or misdirection complained of, and to determine whether a ground of appeal is relevant to the issue formulated, it must be read together with its Particulars to make it a complete Ground, and it must be based on the issue in controversy – Nyako V. Adamawa State House of Assembly (2016) LPELR-41822(SC).

​In this case, the Appellant’s complaint in the main Ground is that the Court below erred in law when it held that the Prosecution proved beyond reasonable doubt that he caused the death of the deceased, and in Particulars No 5 of the said Ground 1, Appellant specified that:

The lower Court did not dispassionately consider all defences put forward by the Appellant during trial before affirming that the Prosecution proved its case beyond reasonable doubt.

He did not mention self-defence, but Courts are encouraged to make the best out of an inelegant ground of appeal in the interest of justice, particularly where no one is left in doubt as to the Particulars on which it is founded – Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205.

In this case, it is clear from the said Ground 1 read in conjunction with its Particulars No. 5 that contrary to the Respondent’s argument, there is a correlation between Ground 1 of the Grounds of Appeal and the Issue 2 distilled therefrom, therefore, its objections are overruled.

But in case it is wrong, which it is, the Respondent submitted in its Brief that a sole Issue calls for Determination in this appeal, that is:

Whether the finding of the Court below that the Prosecution proved its case beyond reasonable doubt against the Appellant beyond reasonable doubt can be faulted or assailed.

​The Appellant sought the indulgence of this Court “to argue both two Issues together as they are interrelated”, and based on the arguments canvassed by the Parties, it is my view that the issue in this appeal is whether the Appellant is entitled to the said defence of self-defence.

The Prosecution called six witnesses. Sgt. Ahmad Abubakar, PW1 is an Exhibit Keeper, and Exhibits, including a cutlass, was admitted in evidence through him as Exhibit A. Ibrahim Isa, who is related to the Appellant, testified as PW2, and his narration of events, are as follows:

“On 4/1/2012 I came out around 9am to buy soap. I met Hassan the deceased person at the Accused person’s shop and the deceased gave the Accused N20.00 in order to spend N10.00 and the Accused held the N20.00 and refused to give the deceased and as a result a scuffle ensured (sic) between them and I was trying to settle them and they refused to stop and I then went away. The Accused person at that juncture ran to his house took a cutlass and cut the deceased with it. Before I came out of my house, I was told that the deceased was taken by the Police and the Police later came back and arrest the Accused. When Lawali, the Accused, took the cutlass he used it to cut the deceased person and I saw when it happened.

PW3, Nura Rabiu, testified that he was not present when the incident occurred but as he was passing, he saw the deceased “lying down on the ground”, and he assisted in taking him to the hospital. He also said he saw the Appellant at the scene of the crime. Alhaji Qasimi Adamu, the Appellant’s neighbour, who testified as PW4, stated as follows:

“On 4/1/2012, around 9 0′ clock in the morning I was coming out of my house… I was not there when the incident took place. When the incident happened, a girl ran to me and informed me that I should come immediately because the Accused killed Hassan. I then ran to the scene of the incident and I saw the Accused holding a cutlass in his hand and I heard him saying I have finished with this one and remain another, at that time Hassan was laying down in a pool of blood and I – – confronted the Accused and the Accused threw the cutlass on the roof of his shop and after that I grabbed the Accused and I put him in the car and took him to the Police Station.

​PW5, PC Saidu Abdullahi, who was at Divisional Crime Branch, Sabon Birnin Police Division, merely narrated how he transferred the case to the C.I.D. Office, for further investigation after it was assigned to him.

PW6, Sgt. Danjuma Giwa, is the Investigating Police Officer at the Homicide Section of the C.I.D. Office, who recorded the Appellant’s Statements to the Police, and when the Prosecution sought to tender it in evidence, the Defence Counsel objected on the ground that – “it is not the Statement made by the Accused at the C.I.D. Office”. However, the trial Court overruled his Objection because it did not touch on the voluntariness of the Statement, and the Appellant’s Statement to the Police recorded by PW6 in Hausa Language and its English version were admitted into evidence through the said PW6 as Exhibits E & E1.

In Exhibit E1, the said English version, the Appellant stated as follows:

On Wednesday, 4/01/2012 at about 0900hrs, I was in my shop where I sell cosmetics at Gatawa Village. One Hassan Ismail came to my shop and gave me the sum of N50.00 and asked me to give him a cigarette of N20.00. I gave him the cigarette and refused to give him change of N30.00 because he owes me the sum of N100.00. I told him that I will not give him the change, Hassan said I’m telling lies. He beat me on my mouth. I pick my cutlass and inflicted serious injury on his leg. He felt (sic) down blood was rushing out. One Alhaji Agada Namanu took him to the hospital where he died. In fact, I’m the cause of Hassan Ismail death. The time I killed him the following people were present: Nura Ismaila, Ala Isa and Luba Mamman, they all witness what happened.”

The Appellant, who did not call any witness, testified as DW1. He said:

“What happened is that myself and Hassan Ismail is that he was my customer he used to come to my shop to buy things. One Wednesday in the morning Hassan came to my shop and requested me to give him battery on credit so that he would pay me the next day and I gave him the battery. The next day Hassan Ismail came to my shop and requested me to give him Animal Feed and he gave me the money for the Animal Feed and said he would pay the money for the battery. At that juncture, I collected back the Animal Feed and told him I would not agree and as a result of that a scuffle ensured (sic) between us and Hassan Ismail abused me and I also abused him and he took a stick from the veranda of my shop and hit me with it on my head and I sustained injuries on my head and I took a cutlass from Hassan Ismail because Hassan was already holding the stick. After I collected the cutlass from Hassan, we started struggling with Hassan in order to collect the cutlass from me, and at that time one Nasiru Agada was present. When Hassan hold (sic) the cutlass, we started struggling and I was able to hold the cutlass and at that juncture I saw blood coming out of Hassan’s hands and legs and at that juncture I closed my shop and we took Hassan to the hospital.

In his judgment delivered on 19/12/2014, the learned trial Judge, Dogon Daji, J., assessed the evidence of the said witnesses, and noted that:

Contrary to the assertion – – that PW2 was present when the Accused cut the deceased with a knife, the evidence of PW2 is not a direct evidence of the occurrence of the offence charged. What PW2 witness (sic) was the beginning of the scuffle between the Accused and deceased. PW2 did not state that he witnessed the actual attack with a cutlass by the Accused. It is also to be noted that the evidence of PW3 and PW4 are also not direct evidence of the actual attack by the Accused on the deceased. PW3 specifically stated that he was not at the scene when the incident happened while PW4 stated that he was called by a girl while he was at home that morning — What PW4 said he witnessed was the Accused holding a cutlass and making outbursts that he had finished with this one and remain another pointing at the deceased, who was laying (sic) in a pool of blood.

He evaluated the evidence vis-a-vis the ingredients of the offence, and found the death of the deceased, proved. On the second ingredient that his death was caused by the Appellant, he concluded as follows:

It is the view of this Court that looking at Exhibit E and E1 – – in which the Accused unequivocally and without mincing words admitted to have hit the deceased with a cutlass and as a result of which he sustained serious injury, which led to his death on the same date, is confessional in nature and it was properly admitted in evidence by this Court. It is to be noted that if the evidence of PW2, PW3 and PW4 and Exhibit A are considered, one will come to the conclusion that the confession of the Accused – Exhibits E and E1 is, indeed, true. The Accused – – when he testified as DW1 had tried to retract or resile from the Confessional Statement — Exhibits E and E1. The Accused – had tried to convince this Court that it was while he was trying to collect the cutlass from the deceased that the deceased injured himself, which injury led to his death – – – The action of the Accused of retracting from his confession as contained in Exhibit ‘E’ and ‘E1’ cannot in any way avail him. The action of the Accused is an afterthought. It is just like the action of a drowning man who can hold at anything, which cannot assist him. It is the view of this Court that the Prosecution has by Exhibits E & E1, Exhibit A and the evidence of PW2 & PW4 proved the second ingredient of the offence.

​On the third ingredient – whether his act or omission that caused the death of the deceased was intentional or with the knowledge that death or grievous bodily was its probable consequence, he held that it can be inferred from Exhibits E & E1, the cutlass used, and evidence of PW2 and PW4 that the Appellant had intended to kill the deceased. Thereafter, he observed as follows on the defence of self-defence:

The Accused in his evidence had tried to raise the defence of self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using the cutlass on him that the deceased injured himself, which resulted to his death – – The evidence of the Accused is an afterthought and cannot be believed by this Court in the face of Exhibits E & E1 and evidence of PW2 & PW4. In Exhibit E & E1 – – he stated that the deceased beat him on the mouth and as a result of that he took his cutlass and inflict serious injuries on the leg of the deceased. To my mind, the action of the Accused of hitting the deceased with a cutlass cannot be said to be proportional to the act of the deceased of beating the Accused with bare hands on his mouth …….. The act of the Accused of hitting the deceased with a cutlass cannot be said to be reasonable in the circumstances of this case. The Accused in his Confessional Statement stated that the deceased beat him on the mouth and as a result of that he took a cutlass and inflict serious injuries on the leg of the deceased and blood was gushing out. It is also the view of this Court that a mere beating by hands on the mouth cannot be said to cause reasonable apprehension of death or grievous harm – – – It is the view of this Court that in the circumstances of this case, the Accused is not entitled to the defence of self-defence – The Prosecution in this case have proved all the essential ingredients of the offence of Culpable Homicide Punishable with Death.

The Court of Appeal, in its judgment delivered on 6/10/2017, held that:

The trial Court was not in doubt that the Confessional Statement, Exhibits E & E1, was sufficient of itself to ground a conviction. Moreover, there were other pieces of evidence outside that Statement that beefed out the weight of evidence against the Appellant. In these circumstances, it is difficult to fault the lower Court’s finding of guilt – – The lower Court was on firm ground in reaching its conclusion that indeed, the Prosecution had proved its case beyond reasonable doubt without any exculpating circumstances to rock that ground. The Appellant’s Confessional Statement also does not seem to contravene the provisions of the Criminal Procedure as it meets the test of admissibility and without more, is sufficient to ground a conviction for the offence. The requirement of proof beyond reasonable doubt in criminal cases was satisfied by the Prosecution – – Even the Appellant predicated his testimony in open Court on self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using it on him that the deceased was injured, which resulted in his death. Any offence, including culpable homicide punishable with death, may be proved by circumstantial evidence – — The circumstantial evidence in [this] case leaves no room for reasonable doubt that Appellant was the one that caused the injury to the deceased, which resulted in the death of the latter. The Prosecution proved beyond reasonable doubt that the Appellant caused the death of the deceased.

The Court of Appeal affirmed the trial Court’s findings up to this point, however, it parted ways with the trial Court on the third ingredient –

“whether death was a probable and not only a likely consequence of the injury inflicted by the Appellant on the thigh of the deceased considering the nature of the weapon used and part of the deceased’s body injured”

It said the conviction for the offence could be upheld if it is satisfied:

That on the evidence, Appellant “knew or had reason to know that death would be the probable and not only a likely consequence” of the injury on the thigh of the deceased with a cutlass, or (2), the Appellant, by injuring the deceased on his thigh, “knew or had reason to believe that death would be the probable and not only a likely consequence” of that bodily injury.

The Court of Appeal then concluded as follows in its own judgment:

The proper verdict would have been that the injury inflicted on the deceased by the Appellant with a cutlass on the thigh, was only “likely” to cause death, as defined by Section 19 of the Penal Code, in that any cut by a cutlass aimed at the leg or thigh “would cause no surprise to a reasonable man” if death resulted. The injury caused by the Appellant on the thigh of the deceased, as distinguished from a cut, say, on the head or the abdomen would not “probably” cause death. In other words, I do not think that death would be considered by a reasonable man to be the natural and normal effect of the Appellant’s act. Accordingly, the conviction of the Appellant cannot also be sustained under Section 221 of the Penal Code. For these reasons, I find the Accused guilty of the culpable homicide of Hassan (deceased) but find him guilty of culpable homicide NOT punishable with death and convict him under Section 224 of the Penal Code. l, accordingly, allow the appeal in part to the extent of setting aside the finding of culpable homicide punishable by death and sentence of death imposed in the judgment of the lower Court delivered on 19/12/2014. In the stead thereof, a finding of culpable homicide NOT punishable with death under Section 220 and punishable under Section 222 (4) of the Penal Code is hereby substituted – – The appeal partly succeeds – – Appellant is sentenced to 10-years imprisonment with hard labour to take effect from 19/12/2014.

The Appellant picked holes in the evidence of Prosecution witnesses, and argued that most of the evidence that the trial Court relied on was either hearsay that is inadmissible, or at best circumstantial evidence; that he provided adequate explanation in his evidence, which did not contradict Exhibits E and E1, but elaborated on it; that the said Exhibits shows that there were yawning gaps in the facts contained therein, which his testimony filled up; and that the circumstantial evidence did not eliminate the possibility that he defended himself against the deceased, as can be seen from Exhibits E & E1 and his evidence in chief, which is an elaboration of the said plea of self-defence that he raised.

He conceded that he did not raise the issue of self-defence at the Court below, and so, it did not give any specific decision on the point. But argued that it ought to have considered the question of whether the said plea was rightly or wrongly rejected, which it had a duty to do, citing Mobil Oil (Nig.) Ltd. V. F.B.I.R. (1977) LPELR-24896(SC); that the trial Court wrongly appraised his plea of self-defence, and this Court is entitled to examine the evidence and make its own assessment, citing Onuchukwu V. State (1998) 4 SC 49; that where the trial Court failed to make proper use of seeing and hearing the witnesses at the trial and took an erroneous view of the evidence adduced, this Court is entitled to interfere with the trial Court’s findings, citing Oguonzee V. State (1998) 4 SC 110, Kwaghshir V. State (1995) 3 NWLR (Pt. 386) 651; and that:

From the evidence borne out of the Records, he had no reasonable mode of escape. He was in his shop and the struggle was protracted. Even PW2 got tired of separating the fight and left the pair to slug it out. It was apparent that it was impossible for him to withdraw from the fight without suffering further hurt from the deceased, who had hit him with a weapon, during the struggle between them. There was, therefore, a necessity on his part to injure the deceased in the cause of defending himself.

He also citedUwaekweghinya V. State (2005) 3-4 SC 29, and submitted that there was no other way of saving himself from death or grievous bodily harm other than using such force, as he did; that it is clear in the circumstances of this case that the deceased intended grievous bodily harm to him and so, he had to defend himself; and that it was in the cause of defending himself that the deceased sustained fatal injuries.

​It is the Respondent’s contention that the Prosecution adduced credible eye witness evidence, evidence of confessional statement and ample circumstantial evidence to prove the offence of culpable homicide not punishable with death against the Appellant beyond reasonable doubt; that a defence of self-defence did not avail the Appellant; and that the Court of Appeal rightly convicted him for the said lesser offence.

It cited Jeremiah V. State (2012) 14 NWLR (Pt. 1320) 248, Nkpuma V. State (1993) 9 NWLR (Pt. 317) 374 and Uwagboe V. State (2008) 12 NWLR (Pt.1102) 621) on the issue of self-defence, and argued that much as the Appellant sought to extricate himself, the contradictions in the defence that he put forward is apparent; that he claims self-defence, and yet, also claims that the deceased injured himself, which is preposterous; that the plea is an admission that his actus reus led to the death of the deceased but he had no requisite mens rea to kill him the deceased, therefore, for him to turn around and claim that the deceased injured himself and died as a result “entirely negates and rubbishes the plea of self-defence”.

​It submitted, citing Archibong V. State (2006) 14 NWLR (Pt. 1000) 349 and Ayedun V. State (2015) 10 NCC 527; that the evidence of PW2, PW3, PW4 and Exhibits A, C, E & E1 put the Appellant on the spot and showed that he and no one else killed the deceased, who was in Appellant’s shop, and both of them had a fight; and eye witnesses saw him holding a cutlass, while the deceased laid on the ground in a pool of his own blood.

Now, there are three ways for the Prosecution to prove its case – direct evidence, circumstantial evidence or confession.

Direct evidence establishes a fact without making any inference to connect the evidence to the fact. In effect, direct evidence proves or disproves a fact directly.

Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is “a conclusion reached by considering other facts and deducing a logical consequence from them” – Black’s Law Dictionary, 9th Ed. In other words, circumstantial evidence does not point directly to a fact. An inference must be made that would link the circumstantial evidence to the fact that the Party using it is trying to prove, which can make it a lot more powerful than direct evidence – see Lori V. State (1980) NSCC (Vol. 12) 269, wherein Nnamani, JSC, stated:

Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction – – must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the Prisoner, and no one else, is the murderer. The facts must be incompatible with innocence of the Accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

A confession is an admission made by a person charged with a crime, stating or suggesting the inference that he committed that crime, and it is settled that a confessional statement, which is sufficient to ground a conviction, is the most effective compass of navigating culpability of an Accused on the part he played in the commission of the offence.

See Obidiozo & Ors V. State (1987) LPELR-2170(SC), and Solola V. State (2005) 11 NWLR (Pt. 937) 460, wherein Tobi, JSC, aptly stated that:

“A confessional statement is the best evidence – – It is a statement of admission of guilt by the Accused and the Court must admit it in evidence, unless it is contested – – If a confessional statement is contested at the trial, our procedural law requires that the trial Court should conduct a trial within a trial for purposes of determining the admissibility or otherwise of the statement. Once a confessional statement is admitted, the Prosecution need not prove the case against the Accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the Accused.”

In this case, the trial Court did not need to conduct a trial-within-trial, as the Appellant did not challenge the admissibility of Exhibits E & E1, on the ground of involuntariness. He merely retracted his confession, and it is well settled that a confessional statement, if made voluntarily, even if subsequently retracted, is sufficient to sustain a conviction — see Solola V. State (supra), Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1.

​In this case, the trial Court found as a fact that Exhibits E & E1 are confessional statements made by the Appellant. The Court of Appeal, in affirming that finding, held that his Confessional Statements meets “the test of admissibility, and without more, is sufficient to ground a conviction for the offence”. These are concurrent findings of the two lower Courts and I see no reason whatsoever to hold to the contrary.

The long and short of it is that the Confessional Statements made by the Appellant to the Police is the best form of evidence against him, and the lower Courts were right to attach probative value to them.

The truth of the matter is that the Appellant placed himself at the scene of the crime with a cutlass in his hand and the deceased lying on the ground in a pool of blood, and this is a clear picture arising from what he narrated in Exhibits E & E1, and his evidence in Court as DW1.

​PW2, PW3 & PW4 may not have been there when the Appellant actually cut the deceased on the thigh with a cutlass. But in my view, what they saw and witnessed at the scene of the crime enhances the picture that the Appellant painted himself. PW2 was there when the fight broke out between the Appellant and the deceased over N20.00.

PW3, who was passing by, saw the deceased lying down on the ground and he assisted in taking the deceased to the hospital. He said he did not see the Appellant with a cutlass but he saw him at the scene.

PW4, who was told by a girl to “come immediately” because the Appellant had killed the deceased, ran to the scene where he saw the Appellant holding a cutlass with the deceased lying in a pool of blood. The cutlass that the Appellant was holding is in evidence as Exhibit A.

There can be no better illustration of circumstantial evidence and confession that leads to the irresistible conclusion that the Appellant, and no one else, caused the death of the deceased. The Appellant has not provided any reason or justification for this Court to interfere with or disturb the concurrent findings of the trial Court and the Court of Appeal that he, and no one else, caused the death of the deceased.

​As the Respondent pointed out, the Appellant has not appealed against the Court of Appeal’s decision to substitute his conviction for culpable homicide punishable with death and death sentence passed on him by the trial Court with a conviction for culpable homicide NOT punishable with death and a sentence of 10-years imprisonment. Thus, the conviction and sentence are binding and subsisting against him — see Alakija V. Abdulai (1998) 6 NWLR (Pt. 552) 1 at 24, which it cited.

Be that as it may, it is clear from his arguments/submissions that the Appellant’s main concern in this appeal is the issue of self-defence. He conceded that he did not raise the issue at the Court of Appeal and the only comment made thereon by the Court of Appeal is as follows:

The requirement of proof beyond reasonable doubt – – was satisfied by the Prosecution. Even the Appellant predicated his testimony in open Court on self-defence where he stated that it was while he was struggling with the deceased in order to collect the cutlass from him to prevent him from using it on him that the deceased was injured, which resulted in his death.

​The Appellant contends that it ought to have considered the question of whether his plea was rightly or wrongly rejected by the trial Court. I agree. He may not have raised the said issue at the Court of Appeal, but it is trite law that an appellate Court will consider all the defences available to the Appellant, whether it is raised in the appeal or not, provided that there are facts established in the lower Court capable of being considered as adequate proof of any of the defences – see Ojo V. State (1973) LPELR-2385(SC), Bello V. FRN (2018) LPELR-44465(SC).

It is well settled that the only error made by a Court that will lead to a reversal of its judgment, is an error that occasioned a miscarriage of justice or substantially affected its decision — see Ajuwon V. Akanni & Ors (1993) 9 NWLR (Pt. 316) 182. The category of the error in this case, can only be determined after resolving the said issue of self-defence.

Now, a successful plea of self-defence, completely exculpates an Accused from criminal liability— see Uwaekweghinya V. State (supra), (2005) 9 NWLR (Pt. 930) 227, wherein this Court explained as follows:

The purport of self-defence in law is to negative the existence of an offence so that where a person kills another in self-defence, the killing, unlike in provocation as a defence, does not amount to an offence but total exoneration of the Accused. Thus, the Accused is discharged and acquitted.

But to benefit from the exoneration that comes with a successful plea of self-defence, an Accused must prove the ingredients of the defence — see Kwaghshir V. State (supra), Musa V. State (2009) 7 SCNJ 329 andAfosi V. State (2013) 13 NWLR (Pt. 1371) 329, wherein this Court stated:

Ordinarily, self-defence that will have any impact on a case to favour an Accused Person must be such that the action taken by the Accused Person was unavoidable. The following are the ingredients of self-defence: –

(a) The Accused must be free from fault in bringing about the encounter;

(b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity;

(c) There must be no safe or reasonable mode of escape by retreat; and

(d) There must have been a necessity for taking life

In order to sustain the defence of self-defence, all the above ingredients must exist and be established.

See also Uwaekweghinya V. State (supra), where this Court also held:

Before the defence is available, it must be shown by the person relying upon it that he reasonably believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did and that he tried to disengage from the event, which led to the application of such force or in this instant case, the use of cutlass – – For an Accused to avail himself of the defence of self-defence, he must show – – that he took reasonable steps to disengage from the fight or make some physical withdrawal. But issue of disengagement depends on the peculiar circumstances of each case. Sometimes it may be possible to run away from an unwarranted attack, at times it may be impossible to withdraw.

In other words, to avail himself of the said defence, the Appellant must show that his life was so much endangered by the act of the deceased that he had no other option but to kill the deceased and save his life; that he did not want to fight; and that he was prepared to withdraw — see Baridam V. State (1994) 1 NWLR (Pt. 320) 250. I am not convinced that he proved any of the ingredients of the defence of self-defence.

​First off, the Appellant cannot claim that he was free from fault. In Exhibits E & E1, he stated that the fight ensued because he refused to give the deceased change of N30.00 after the deceased gave him N50.00 to buy cigarette of N20.00. In his testimony as DW1, he said the fight ensued after he took back Animal Feed the deceased paid for because the deceased had not paid for battery he collected on credit.

For whatever reason the fight ensued, whether N30.00 change that he refused to give the deceased or taking back the Animal Feed, the Appellant instigated the fight between them, which proved fatal.

It is clear also from the evidence before the Court that he did not take any measures to retreat, being in his store. He failed to seize the ample opportunity presented to withdraw from the impending fight, and did not even heed the entreaties made by PW2 to stop fighting.

​In his defence as DW1, the Appellant alleged that the deceased took a stick from the veranda of his shop and hit him on the head and he “sustained injuries” on his head. Even if that is true, the act of the deceased in hitting the Appellant on the head with a stick could not have presented a state of impending peril to his life to warrant the use of a cutlass to cut the deceased. The guiding principles are necessity and proportion — the force must have been necessary and it must have been reasonable — see Adeyeye V. State (2013) 11 NWLR (Pt. 1364) 47, wherein this Court per Ogunbiyi, JSC, stated the right questions to ask:

The two questions, which ought to be posed, and therefore, answered before the trial Court, were: – (1) on the evidence, was the defence of self-defence necessary? (2) Was the injury inflicted proportionate to the threat offered, or was it excessive? If, however, the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such self-defence, then the defence cannot avail the Accused. See R. V. Onyeamaizu (1958) NRNLR 93.

In this case, the Appellant’s action of inflicting injury on the deceased in reaction to being hit with a stick cannot be deemed proportionate to the threat he is alleged to have been faced with. I am not convinced that the use of a cutlass was a necessary and proportionate response.

​It is also difficult to imagine the scenario painted by the Appellant when he said in his defence as DW1 that it was after the deceased had hit him with the stick and he sustained injuries on his head that he took the cutlass from the deceased, who was “already holding the stick”. If, the deceased had the cutlass, why would he use a stick to attack him?

What is more, throughout the trial, the Appellant did not show any evidence of the injuries he allegedly sustained on his head when the deceased hit him on the head with a stick, so as to enable the Court evaluate the gravity of injury to warrant his response. The Respondent cited Bassey V. Queen (1963) 3 NSCC 227, wherein De Lestang, FJ, held:

The Appellant received no injuries and was unable to show any on his person. In these circumstances we think that the assault on the Appellant was not such as to cause reasonable apprehension of death or grievous harm and the force used by the Appellant was excessive – – The defence of self-defence was consequently rightly rejected.

​In this case, it is clear to me that the Appellant’s plea of self-defence is an ill-crafted afterthought to escape culpability. He did not establish the appropriate circumstances in which the defence would avail him. Thus, the fact that the Court of Appeal did not address the Issue in its judgment is of no moment in this appeal; it did not affect its decision.

This appeal lacks merit, it fails and it is, therefore, dismissed.

SC.1076/2017