CASE OF THE DAY: WHEN THE PLEA OF SELF DEFENCE WILL BE SUCCESSFUL

YUSUF AYUBA V. THE STATE

Suit Number:?CA/YL/178C/2021

FULL JUDGEMENT

1. (DELIVERED BY JAMILU YAMMAMA TUKUR, JCA)
2. This is an appeal against the judgment of the High Court of Adamawa State, Yola Division, delivered on 30th September, by Honourable Justice Bulila Ladukiya Ikharo, against the Appellant.
3. The material facts of the case are that the Appellant was brought before the lower Court on a one count Charge of culpable homicide punishable with death contrary to Section 192(a) of the Penal Code Law of Adamawa State 2018. The charge is herein reproduced thus:
4. ‘’that you, Yusuf Ayuba on 22nd February, 2018 at Dawasa Ward of Ganye Town, Ganye Local Government Area of Adamawa State within the Ganye Judicial Division of this Honourable Court on or about 06:30 hours caused the death of one Adamu Bello by stabbing him with knife on his stomach with the intention of causing his death and which resulted to his death’’
5. The Appellant was arraigned, pleaded not guilty and trial ensued. Upon a full trial, the lower Court in a judgment delivered on 30th September, 2021, held that credible and sufficient evidence placed before it proved the case charged against the Appellant beyond reasonable doubt, that the defence of self-defence was not successfully established and consequently convicted the Appellant as charged. The learned trial Judge subsequently sentenced the Appellant to death by hanging.
6. Dissatisfied with the judgment of the lower Court, the Appellant appealed the judgment via a Notice of Appeal dated and filed on 24th November, 2021, with 5 grounds of appeal.
7. The Appellant’s Brief of Argument is dated 22nd March, 2022 and filed on 25th March, 2022, but deemed properly filed on 28th March, 2022.?
8. Appellant’s counsel formulated two issues for determination to wit:
9. 1.Whether from evidence adduced at the trial Court the Respondent was able to prove the charge of culpable homicide punishable with death beyond reasonable doubt. (Grounds 1,2,3 & 5)
10. 2.Whether from evidence adduced at the trial Court the Appellant cannot be availed by any defence under the law (Grounds 2, 4 & 5)
11. Respondent’s Brief of Argument is dated and filed on 7th April, 2022.
12. Respondent’s counsel formulated two issues to wit:
13. 1.Was the trial Court not right when it convicted and sentenced the Appellant based on sufficient evidence adduced by the Prosecution before it, in proving the offence of culpable homicide beyond reasonable doubt against the Appellant? (Grounds 1,2,3 & 5)
14. 2.Was the trial Court not also right when it held that the Appellant has in the circumstance of this case failed woefully to sustain the plea of self-defense or any other defense? (Ground 4)
15. An examination of the issues presented by counsel on both sides reveal that they are substantially the same. I will proceed to determine this appeal on the issues raised by the Appellant.
16. ISSUE ONE:
17. WHETHER FROM EVIDENCE ADDUCED AT THE TRIAL COURT THE RESPONDENT WAS ABLE TO PROVE THE CHARGE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH BEYOND REASONABLE DOUBT. (GROUNDS 1,2,3 & 5)
18. Learned counsel for the Appellant argued that one of the ingredients of culpable homicide, that is ‘’that the act of the Accused was done intentionally or with knowledge that death or grievous bodily harm was the probable consequence’’ was not proven at the trial Court beyond reasonable doubt because from the circumstances that led to the fatal stabbing of the victim by the Appellant, it is clear that the Appellant did not pick up a knife with the intention of stabbing the deceased, rather he was already in possession of the knife at the time, as he had come home with the sole intention of picking the knife to use at work. Counsel also argued that the fact that the Appellant suffered stab wounds on his fingers/hand during the fight with the deceased from the deceased’s own knife as confirmed by the testimony of the Appellant and the DW1, shows that the Appellant’s intention was not to kill the deceased.
19. On the other hand, learned counsel for the Respondent argued that the Respondent as Prosecution at trial was able to prove the offence charged against the Appellant beyond reasonable doubt through the Appellant’s confessional statement (Exhibits B1 & B2), oral testimony of PW1, PW2 and PW3, and circumstantial evidence.
20. He relied on a number of authorities, including: Posu v. State (2021) EJSC Vol.159 page 137 at 148 paras B.; Seun v. State (2021) EJSC Vol.160 page 55 at 73 para B; and Okere v. IGP (2021) EJSC Vol. 157 page 70 at 87 paras G-H.
21. Counsel posited that the three ingredients of the offence of culpable homicide: that the deceased died; that the death was caused by the act or omission of the Accused person; and that the act was done intentionally or with the knowledge that death or grievous bodily harm was the probable consequence, were all clearly established at trial beyond reasonable doubt.
22. Counsel stressed that the voluntary confessional statement of the Appellant alone was enough to convict the Appellant for the crime charged. He referred to Addo v. State (2021) NWLR (Pt.2) page 81 at 104 paras C-C; Olayode v. State (2021) EJSC Vol.157 page 155 at 168-169 paras G-B; Samaila v. State (2021) EJSC Vol.157 page 1 at 15 paras E-F; and Basil Akpa v. The State (2008) 163 LRCN 186 at 19, 203 JJ 208 A.
23. RESOLUTION OF ISSUE ONES
24. The trite principle of law to the effect that the Prosecution in a criminal matter must prove the offence charged against the person accused of the crime beyond reasonable doubt cannot be overemphasised, particularly in cases such as the instant appeal, wherein the offence with which the Appellant was charged and convicted at the trial Court carries with it the ultimate punishment.
25. Section. 135 of the Evidence Act 2011 provides thus:
26. “135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.?
27. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.’’
28. The Supreme Court succinctly restated this settled principle of law in the recent case of NWIKO v. STATE (2022) LPELR-57747(SC) (Pp 9 - 9 Paras A - B), thus:
29. ‘’The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGUA & ORS VS THE STATE (1970) LPELR-2780 (SC); Sections 135 & 138 of the Evidence Act 2011 (as amended)."
30. See: MAGNUS v. STATE (2021) LPELR-56086(CA); AJOGWU v. STATE (2020) LPELR-50703(CA); and ADENIYI v. STATE (2021) LPELR-56208(CA).
31. The offence of culpable homicide punishable with death, which the Appellant was charged with at the trial Court under the Adamawa Penal Code, is well known and was aptly defined by both Counsel, with the ingredients well spelt out. The offence is said to have been established when it is shown by cogent, credible and unequivocal evidence that the Accused caused the death of the deceased, and that the act of the Accused which caused the death of the deceased was done with an intent to kill or cause grievous bodily harm or in circumstances whereby such intention may be implied.?
32. The Apex Court in the case of ANKPEGHER v. STATE (2018) LPELR-43906(SC) (Pp 12 - 13 Paras C - A), while examining a similar provision clearly restated the ingredients of the offence thus:
33. "A conviction for culpable homicide punishable with death under Section 221 of the Penal Code would be sustained if the prosecution is able to prove the ingredients of that offence beyond reasonable doubt. Now the ingredients of the offence of culpable homicide punishable with death or murder are as follows:- (a) that the deceased has died; (b) that the death of the deceased was caused by the act of the accused and, (c) that the act of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See Musa v. The State (2009) 15 NWLR (Pt.1165) 467, Ilodigiwe v. The State (2012) 18 NWLR (Pt.1331) 1 Ogedengbe v. The State (2014) LPELR-23065 (SC), (2014) 12 NWLR (Pt.1421) 338."
34. See: PAUL v. STATE (2019) LPELR-47386(SC); SALE v. STATE (2022) LPELR-57190(CA); and MUSA v. STATE (2022) LPELR-57024(CA).
35. A careful examination of the records reveal that the Respondent was able to establish every ingredient of the offence charged beyond reasonable doubt. The Appellant without doubt caused the death of Adamu Bello, by stabbing him in such a manner that he lost a lot of blood and according to witnesses, Adamu’s intestines spilled out.?
36. The arguments as to intention do not hold water, as a man is presumed to intend the natural consequences of his actions, except it can be shown that such is not the case. Stabbing someone in a vulnerable part of the human body such as the stomach, in such a vicious manner, leaves no reasonable doubt that death or at the very least the causing of grievous bodily harm was the intent of the Attacker.
37. In light of the above, this issue is resolved against the Appellant.?
38. ISSUE TWO:
39. Whether from evidence adduced at the trial Court the Appellant cannot be availed by any defence under the law (Grounds 2, 4 & 5)
40. Learned counsel for the Appellant argued that all the ingredients for the defence of self-defence was established by the Appellant at trial and ought to have availed the Appellant, especially in light of the uncontroverted testimonies of the Appellant and the DW1, which point irrevocably to the fact that the Appellant was free from fault in bring about the encounter-the fight was instigated by the deceased; there was threat to the Appellant’s life and the Appellant had no means to escape- the deceased had held him down; and there was necessity of taking the deceased’s life to save the Appellant’s own- the deceased was strangling the Appellant and was about to stab the Appellant.
41. He relied on: Etim v. State (2020) LPELR-51253 (CA); Mozie v. State (2012) LPELR-14353(CA); Ighalo v. State (2013) LPELR-20762 (CA); and Audu v. State (2002) LPELR-7098 (CA).
42. In the alternative, learned counsel for the Appellant argued that the Court has the duty to consider every possible defence available to a Defendant even where same is not expressly raised by the Defendant. Counsel posited that the defence of provocation was impliedly raised from the evidence adduced at the trial Court and urged this Court to hold that the defence of provocation applies to the Appellant’s case. Counsel based the foregoing position on the alleged fact that the ingredients for the successful plea of the defence was present in the Appellant’s case at trial, as the act by the deceased was provocative-by first denying the Appellant’s messenger access to the Appellant’s wife, followed by the deceased ambushing the Appellant in front of the Appellant’s room and physically attacking him; that the physical attack led to loss of self-control on the part of the Appellant; that the provocative act was continuous and Appellant used proportionate force in dispelling the attack-the deceased attacked with a knife and with intent to kill the Appellant.
43. He relied on: Omoregie v. State (2004) LPELR-12494 (CA); John v. State (2017) LPELR-48039(SC); Musa v. State (2014) LPELR-23631(CA); Hassan v. State (2017) LPELR-41994(CA); and Edoko v. State (2015) LPELR-24402(SC).
44. On the other hand, counsel for the Respondent argued that a defence of self-defence is a complete defence, if the Appellant raised it timeously, and all the ingredients of the defence were present, especially the condition that the Appellant acted proportionate to the threat received, conditions which were not present at trial, as the Appellant only raised the defence of self-defence for the first time in Court and the Exhibits, testimony of the Witnesses and the testimony of the Appellant as DW2 show that the defence is not available to the Appellant.
45. He relied on: Egheghe v. State (2021) EJSC Vol.138 page 76 at 97 paras B-D; Emmanuel Ogar Akong v. The State (2015) 9 NWLR Pt.1465 page 454 at 480 paras B-D; and Adamu Sheidu v. State (2014) 15 NWLR (Pt.1429) 1 at 24 paras G-C.
46. Counsel submitted that the defence of provocation cannot avail the Appellant as there was no provocative act of a degree and nature to constitute a defence to the Appellant’s act.
47. He referred to the definition by Devlin J in R v. Duffy (1949) 1 ALL ER 932, as adopted by the Supreme Court in the case of Addo v. State at 115 paras F-G.
48. RESOLUTION OF ISSUE TWO
49. There is no gainsaying the fact that the most precious right a Human possesses is the right to life. This right is akin to a foundation upon which the blocks of other right s flow from. As a corollary to the right to life, every person has the right to defend his person against unprovoked or illegal aggression, trespass or threat which has the tendency of causing death to his person or grievous bodily harm. The foregoing is the import of Section 33(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). A person who seeks to defend himself must however bear in mind that in defending his life, the force used to prevent or repel the force levied against him must be proportionate to the force so levied. This is akin to the law of physics that to every action, there is an equal and opposite reaction. The reaction should be equal. A person who attacks another with a feather, should not be bludgeoned to death with a big plank of wood in the name of self-defence. Also, the person who is being attacked ought to consider avenues of escape, before resorting to self-defence if such avenues do not exist or are not promising. Thus, the guiding principles are necessity and proportion. The legal effect of a successful plea of self-defence is that the Accused is discharged and acquitted, in other words the death of the deceased was warranted and the Accused would not be punished for acting to defend his life.
50. The Supreme Court in the case of NASIRU v. STATE (2021) LPELR-55637(SC) Pp 29 - 31 Paras D - F), reiterated what constitutes the legal defence of self-defence thus:
51. "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.’’
52. See: WOWEM v. STATE (2021) LPELR-53384(SC); EKWUGHA v. STATE (2020) LPELR-50629(CA); and MOHAMMED v. STATE (2020) LPELR-50919(CA).
53. There is no doubt that the Appellant presented the defence of self-defence before the lower Court in line with the settled position of the law that an Accused may present before the Court defences that may either excuse his act or mitigate the consequences by changing the nature of the offence and reducing the severity of the punishment. The trial Court painstakingly examined the defence and found that same was not established. For ease of clarity the learned trial Judge in his judgment at pages 28-29 (pages 122-123 of the record) stated thus:
54. “It is an essential principle of Criminal Trial that courts are obliged to consider defence open to an accused person but only as disclosed or supported by a piece of evidence before the court, however stupid or unreasonable.
55. In the instant case the defendant has raised or plea self-defence and the onus is on him to show that the force he used to preserve his life was proportionate to the force used against him and reasonable in the circumstance in which it was used. See the decision of the Apex Court in WOWEN VS STATE (2021) PT 7 MWLR PG 92 AT 126 PARAG B-C.?
56. In this case defendant has not been able to establish that being beaten with bare hands was proportionate to him stabbing the deceased on his stomach, going by the defendants statement which I have held to be voluntarily obtained and his direct, positive and unequivocal he therein narrated how he stabbed the deceased and ran away but later arrested. He also as DW II admitted under Cross-Examination that his statement is a replica of what transpired between him and the deceased. See exhibit B1 & B2 there’s nothing in this statement to show that he acted in self-defence the deceased being armless at the material time. For the defendant to now turn around in his evidence in chief and his witness DW1 to state to the effect that the deceased was armed. I find it to be an after-thought and U-turn from his statement and this can not avail him.
57. But assuming without conceding that the deceased was armed, it is the defendant’s testimony that when the deceased was about to remove his weapon he blocked it with his fingers or hand which injured his fingers and that the said knife of the deceased fell down, that feeling the pain he now used the knife on his body (defendant) to stab the deceased on his stomach and seeing the sight he ran away.
58. If this is the picture of all its surface to state that at the time the deceased knife fell down without trying to take it back, the deceased had become armless and therefore no any further fear posed to the defendant again at which point the defendant would have call for intervention, or ran away and report to the police or go back to his room and lock it up or even ask DW1 who claimed to be around to pick the deceased knife when it fell down but he chose to use the knife on his body to callously stab the deceased who collapsed immediately with his intestines gushed out which act led to his death few hours later in the hospital.”
60. I have also looked at the defence as presented before the lower Court and argued before this Court and I agree with the findings of the lower Court. The circumstances in which the Appellant found himself when he committed the homicide was not one that necessitated the brutal use of force via stabbing with a knife in the way and manner he did. He had the option of escaping upon disarming the deceased but he went ahead to viciously stabbed the deceased in the stomach bringing forth his intestine which led to his death. The defence of self-defence cannot avail the Appellant under the circumstances.
61. I agree with Appellant’s counsel that the lower Court ought to consider every defence open to an Accused as arising from the evidence before it. See: MUSTAPHA v. STATE (2021) LPELR-53994(CA). In this regard learned counsel for the Appellant contended that from the evidence before the lower court, the defence of provocation was available to the Appellant and that the lower court ought to consider same.?
62. Provocation as a legal defence, and not the normal everyday trials that humans go through at the hands of their fellow humans, is an act or continuing act, which would cause in any reasonable person, and actually caused in the Accused, a sudden and temporary loss of self-control, which made him commit the act that resulted in the offence charged. The act must have been carried out in the heat of the moment, without the passage of time or events that afforded the Perpetrator the chance for his anger to cool. Like self-defence, the issue of proportionality, as expounded above, is also crucial to a successful plea of provocation. The Supreme Court in ABDU v. STATE (2022) LPELR-57689(SC), while examining provisions similar to that of the Adamawa State Penal Code, gave a comprehensive exposition of the defence of provocation thus:
63. "To start with, it is an elementary principle that a plea of provocation does not exculpate the Accused Person, but is only a mitigating factor when it comes to sentencing, and as this Court held in Edoho V. State (2010) 4 SCNJ 100 and Uwagboe V. State (2008) 4 SC 67, for provocation to constitute a defence, it must consist of three elements, which must co-exist, and they are as follows: (a) The act of provocation was done in the heat of passion. (b) The loss of self-control both actual and reasonable; that is to say, the act was done before there was any time for cooling down, and (C) The retaliation is proportionate to the provocation. See also Kaza V. State (2008) LPELR-1683(SC) wherein Tobi, JSC, observed. "Provocation is an action or conduct, which arises suddenly in the heat of anger. Such action or conduct is precipitated by resentment, rage, or fury on the part of the Accused Person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused Person suddenly and temporarily loses his passion and self-control; a state of mind, which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the Accused. This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage, or fury, as there is time for passions to cool. The very act of repottage of the words or acts of the Accused should materially reduce or drown the anger, resentment, rage, or fury of the Accused." The test is whether a reasonable man in the street or status of the Accused would have been provoked to commit the offence - see Kaza V. State (supra), Shalla V. State (2007) 18 NWLR (Pt. 1066) 240 SC, and Owhoruke V. COP (2015) LPELR-24820(SC), wherein Rhodes-Vivour, JSC, also explained that - "There is no set standard of retaliation expected from a reasonable man; it all depends on the Appellant's station in life. A reasonable man is a reasonable man of the Accused Person's standing in life and to a large extent, his cultural background."
64. See: NWODO v. STATE (2018) LPELR-46335(SC); HASSAN v. STATE (2017) LPELR-41994(CA); and JIKA v. STATE (2022) LPELR-57338(CA).
65. Again the issue of proportionality or the lack thereof of the Appellant to the words and aggression from the deceased as shown from the evidence on record is what in my view vitiates the application of the defence of provocation in the instant case. It does not avail the Appellant. This issue is also resolved against the Appellant.
66. The Appeal lacks merit and is dismissed. The conviction of the Appellant for culpable homicide punishable with death contrary to the provision of Section 191(a) and punishable under Section 192 (a) of the Penal Code Laws of Adamawa State 2018 and the sentence of death by hanging passed on the Appellant by the lower court in its judgment in Charge No. ADSY/24C/2020 between the State V. Yusuf Ayuba delivered on 30th September, 2021 are hereby affirmed.
68. JAMILU YAMMAMA TUKUR
69. JUSTICE, COURT OF APPEAL
70. COUNSEL APPEARANCE
71. Chidi Anga with M. C. Chijioke Esq. for Appellant
72. Z. Y. Usman Senior State Counsel II Ministry of Justice Adamawa State with Salihu Muhammed Senior State Counsel 1 for Respondent
74. CA/YL/178C/21
75. CHIDI NWAOMA UWA
76. JUSTICE, COURT OF APPEAL
77. I read in advance a draft copy of the judgment delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. His lordship has comprehensively determined the issues in this appeal against the Appellant. I adopt same as mine in holding that the appeal lacks merit and same is accordingly dismissed.
78. I affirm the decision of the lower court in Charge No. ADSY/24C/2022 delivered on 30th September, 2021.
79. CHIDI NWAOMA UWA
80. JUSTICE, COURT OF APPEAL
82. CA/YL/178C/2021
83. MOHAMMED LAWAL ABUBAKAR, JCA
84. I read in draft the lead judgment delivered by my learned brother, Jamilu Yammama Tukur, JCA. I entirely agree with his reasoning and conclusion.
85. The decision of the lower Court is affirmed and the Appeal is dismissed for lack of merit. I have nothing to add.
87. MOHAMMED LAWAL ABUBAKAR?
88. JUSTICE, COURT OF APPEAL

COUNSEL

Chidi Anga with M. C. Chijioke Esq. for Appellant

Z. Y. Usman Senior State Counsel II Ministry of Justice Adamawa State with Salihu Muhammed Senior State Counsel 1 for Respondent