THE STATE v. SHEEVO SHONTU (2014)

THE STATE v. SHEEVO SHONTU

(2014)LCN/7604(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of December, 2014

CA/YL/33C/2012

RATIO

CRIMINAL LAW: CULPABLE HOMICIDE PUNISHABLE WITH DEATH; THE INGREDIENT OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
It is now well settled that the following are the ingredients which must be proved by the prosecution for a successful prosecution of the offence of culpable homicide punishable with death:
1. That the death of a human being has actually taken place.
2. That such death was caused by the accused.
3. That the act was done with the intention of causing death; or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act.
For this proposition, see Rabi Isma’il V State (2011) SCNJ 102; Kaza V State (2008) 2 SCNJ 373; (2008) 7 NWLR (Pt.1085) 125; & George V State (1993) 6 SCNJ 249. These three (3) ingredients must co-exist. Where one of them is absent or tainted with some doubt, the charge is not proved. See Ochemaje V State (2008) 6 SCNJ 143. per. JUMMAI HANNATU SANKEY, J.C.A.

COURT: DUTY OF COURT; THE DUTY OF A COURT TRYING A CRIMINAL CASE TO CONSIDER ALL THE DEFENCES RAISED BY THE ACCUSED

The law is also trite that a court trying a criminal case must consider all the defences raised by the accused and all other defences which surfaced in the evidence before the court, however slight or minor. See Kaza V State (supra); Ahmed V State (1999) 7 NWLR (Pt.612) 641. per. JUMMAI HANNATU SANKEY, J.C.A.

CRIMINAL LAW: CULPABLE MURDER PUNISHABLE WITH DEATH; THE REQUIREMENT THAT MUST CO-EXIST FOR CULPABLE MURDER NOT PUNISHABLE WITH DEATH ACCORDING TO THE PENAL CODE AND THE INGREDIENT OF SELF DEFENCE

Now, the substantive law on this issue is as contained in Section 222 (4) of the Penal Code, which provides as follows:
“Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel and unusual manner.”
In order for this provision to come into play, there must be a sudden fight in the heat of passion. There must also be absence of premeditation. And the accused must not take undue advantage or act in a cruel or unusual manner. The three (3) requirements must again co-exist.
The statement of the Respondent, in Exhibit 2, is an admission that the deceased died due to a knife cut on his left leg during a scuffle between them. By raising the plea of self defence, it is an admission that he did commit the act for which he was charged, but explains that it was in self defence. Self defence means that the accused person did the act while in the process of defending himself, but with no intention to kill or cause grievous bodily harm. The law is trite that the defence of self-defence, if successful, is a complete defence or answer to the charge of murder or manslaughter. See Omoregie V State (2008) 12 SCNJ 723; Kim V State (1992) 4 NWLR (Pt. 233) 17.

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND THE STANDARD OF PROOF IN OUR ADVERSARIAL SYSTEM OF CRIMINAL JUSTICE
The burden of proof in our adversarial system of criminal justice is for the prosecution to prove its case beyond reasonable doubt. In so doing, the law requires the prosecution to prove all the essential ingredients/elements of an offence as contained in the charge. The law places the burden on the prosecution to produce vital material evidence and witnesses to testify during course of proceedings, before the trial Court can come to the conclusion that an offence was committed by a person accused. This is the way I.T. Muhammed, JSC, lucidly described the process in Chukwuma (aka Goddy) V State (2011) 5 SCNJ 40 @ 55:
“The prosecution does not need a magic wand in order to attain its proof to be beyond reasonable doubt. All the prosecution is required to do simply is to put forward to the court evidence which is so strong, compelling and convincing against the accused such that it leaves no reasonable man in doubt as to the probability of the accused person committing the alleged offence. That in effect is the interpretation given by our superior courts to the common law origin phrase of “beyond reasonable doubt” which has been embellished in Section 138 of the Evidence Act CAP 112 LFN, 1990 [Cap. E14 LFN, 2004].”
Proof beyond reasonable doubt indeed does not mean proof beyond all doubt, or all shadow of doubt. It just means that the prosecution is required to establish the culpability of the accused person with convincing, compelling and irrefutable evidence. It means a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt is not achieved by the prosecution calling numerous witnesses to testify. The court is only interested in the testimony of a quality witness, so long as the charge is not one that needs corroboration. See: Joseph V State (2011) 6 SCNJ 222 @ 235 per Rhodes-Vivour, JSC.
Again, proof beyond reasonable doubt does not mean proof to the hilt; neither does it mean proof beyond an iota of doubt, nor proof beyond a shadow of doubt. See Gambo Musa V State (2009) 7 SCNJ 329 @ 347 per Fabiyi, JSC; & Nasiru V State (1999) NWLR (Pt. 589) 87 per Uwais, CJN.
As Denning, J. (as he then was), observed in Miller V Minister of Pensions (1947) 2 ALL ER 372:
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘Of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt. But nothing short of that will suffice.”
From the statement of the law set out as above in numerous decisions of the Apex Court, the law is settled on the requirement of proof beyond reasonable doubt to secure a conviction for any criminal offence by virtue of Section 138 (1) of the Evidence Act. Therefore, if on the entire evidence adduced before a trial Court, that court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is on the credible evidence of a single witness. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it, thereby entitling the accused person to the benefit of the doubt, resulting in his discharge and acquittal. See Afolalu V State (2010) 7 SCNJ 354; State V Danjuma (1997) 5 NWLR (Pt. 506) 512; Posu V State (2011) 2 SCNJ 27. per. JUMMAI HANNATU SANKEY, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHEN AN ACCUSED PERSON IN A CASE OF CULPABLE HOMICIDE CAN BE CONVICTED BY CIRCUMSTANTIAL EVIDENCE
It is more often the case that it is not in every case of culpable homicide punishable with death that eye-witness evidence is available to prove a case. Thus, an accused person can be convicted of the offence charged if, and only if, there exists cogent and compelling circumstantial evidence to establish the fact that the accused killed the victim. See: Jua V State 2010) 2 SCNJ 224; Akpan V State (2000) 12 NWLR (Pt. 682) 667; Onah V State (1985) 3 NWLR (Pt. 12) 236.
Learned Counsel for the Appellant has made heavy weather of surmised contradictions pin-pointed by him, which he submits the trial Court used to discharge and acquit the Respondent of the offence charged. The word ‘contradiction’ traces its lexical roots to two Latin words, namely, ‘contra’ and ‘dictum’, which means ‘to say the opposite’. See Eke V State (2011) 2 SCNJ 57; Ikemson V State (1989) 3 NWLR (Pt. 110) 455. per. JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

THE STATE Appellant(s)

AND

SHEEVO SHONTU Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Taraba State sitting at Jalingo delivered on 31st January, 2012, wherein the learned trial Judge discharged and acquitted the Respondent of the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code.
At the trial Court, the Respondent was arraigned for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code. The charge read as follows:
“That you SHEEVO SHONTO, on or about the 2nd day of June, 2010 at a maize farm near Mararaba Kunini, Lau Local Government Area of Taraba State within the Jalingo Judicial division committed culpable homicide punishable with death to wit: stabbing UMARU AHMED a.k.a. MASHO on his left leg with a knife with the knowledge that death would be the probable consequence of your act and he died as a result of the injury inflicted by you.”
As is manifest from page 18 of the printed Record of Appeal, the charge was read out to the Respondent on 03-02-11. He pleaded not guilty to the charge before Adi, J. By the evidence adduced before the trial Court, the Respondent raised the defences of both sudden fight and self-defence. In the reserved Judgment handed down by the learned trial Judge on 31st January, 2012, he found that the Appellant had failed to discharge the burden of proof placed on it by law to prove the charge against the Respondent beyond reasonable doubt. He therefore entered a verdict of discharge and acquittal in favour of the Respondent.
The Appellant, feeling unhappy with the stance of the learned trial Judge, has ex debito justitiae, appealed to this Court. His Notice of Appeal, filed on 05-03-13 was accompanied by six (6) Grounds of Appeal.

On 19-11-13, when the Appeal was heard by this Court, the learned DPP for the Appellant, Mr. A.Y. Shitta, adopted and relied on the arguments canvassed in the Appellant’s Brief of argument filed on the 25-07-12 and urged that the Appeal be allowed. At pages 5-6 of the Appellant’s Brief of argument, four (4) issues are distilled from his six (6) Grounds of Appeal. In like vein, on the same date, Mr. Tyonongu, learned Counsel for the Respondent, adopted and relied on the arguments canvassed in the Respondent’s Brief of argument filed on 22-08-12 as the Respondent’s arguments in this Appeal. He urged that the Appeal be dismissed. In a concise manner, three (3) issues were decoded for a due determination of the Appeal at page 3 of the said Brief.

I will state briefly the facts that are germane to the resolution of this Appeal. On 02-06-10, at a maize farm near Mararaba Kunini in Lau Local Government Area of Taraba State, one Umaru Ahmed, a.k.a. Masho, was out grazing his cattle on the farm of the Respondent. The Respondent, upon sighting Umaru on his farm, approached him agitatedly. With the aid of a stick, he began to drive the cattle out of his farm and an argument ensued, at which point Umaru, the deceased, pulled out a knife. The Respondent used the stick to strike the knife out of the deceased’s hand and it fell to the ground. Both of them struggled to get control of the knife which had fallen to the ground. In the course of the struggle, the Respondent stabbed Umaru on his left thigh, while he also received a stab wound on his arm. Umaru, then still alive, was rushed to the Federal Medical Center, Jalingo, where he was pronounced dead on arrival. While Umaru was being taken to hospital, the Respondent reported the incident at the nearest Police station at Mararaba Kunini in Lau Local Government Area of Taraba State. The Respondent was promptly arrested and subsequently arraigned before the High Court on a charge of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code. He pleaded not guilty. In a bid to establish the charge at the trial, the Appellant adduced evidence through five (5) witnesses and tendered two exhibits, while the Respondent testified in his defence and called one witness. The Medical Report of the Pathologist and the extra judicial statement of the Respondent to the Police are Exhibits 1 and 2 before the trial Court.
In their respective Briefs of argument, the Appellant formulated four (4) issues while the Respondent defined three (3) issues for determination. After a careful perusal of the facts of this Appeal as disclosed in the printed Record, in conjunction with the six (6) Grounds of Appeal, I adopt the issues as defined by the Respondent, with a little modification, in resolving this Appeal:
1. Whether the learned trial Judge was right when he upheld the defences of sudden fight and self defence in arriving at a verdict of discharge and acquittal of the Respondent.
2. Whether there was any evidence before the trial Court upon which it ought to have acted to convict the Respondent on a lesser charge.
3. Whether the verdict of the trial Court discharging and acquitting the Appellant was based solely on its finding that there were some contradictions in the evidence of the prosecution’s case.

Issue 1: Whether the learned trial Judge was right when he upheld the defences of sudden fight and self defence in arriving at a verdict of discharge and acquittal of the Respondent.
The learned DPP for the Appellant admits up front to the position of the law that where a court finds that the defence of self-defence avails an accused person, such an accused person is entitled to an order of discharge and acquittal, as it is a complete defence. James Biruwa V State (1985) 3 NWLR (Pt. 167) 172 is relied on. Counsel however takes up issues with the finding of the learned trial Judge found that, even though the Respondent exceeded the powers given to him by causing the death of the deceased, he was entitled to the defence of self-defence. Counsel argues that the proper order should have been a conviction, and not a discharge and acquittal. He therefore urged the Court to find that the order of discharge and acquittal of the Respondent of the offence of culpable homicide punishable with death or any lesser offence was made in grave error and should not be allowed to stand.

He further submits that, for the defence of self-defence to avail the Respondent, it must be shown that he tried and did everything possible to disengage himself from the fight with the deceased or that he made some sort of physical withdrawal. He referred to the evidence of the PW1 and the Respondent himself in the Exhibit 2 and his testimony before the trial Court and concludes that the Respondent failed to take any reasonable steps to disengage from the fight or make some physical withdrawal, and thus could not be availed of the defence of self-defence. He relies on the decision in Sampson Nkeji V State (2005) 1 NCC 369 @Pages 384-385 Ratios 9 &10. He therefore urged the Court to find that the defence of self-defence is not available to the Respondent not taken having taken any steps to disengage from the fight. He contends that the life of the Respondent was not in any danger having disarmed the deceased of the knife with which he then used in stabbing the deceased. Reliance is placed on Apugo V State (2007) 2 NCC 30 @ 51; & Frank Uwagboe V State (2008) 163 LRCN 92 @ 96 per Niki Tobi, JSC:
“The plea of self-defence may afford a defence where the party raising it uses force, not merely to counter and actual attack, but to ward off or prevent an attack which he has honestly and reasonably anticipated. In that case, the anticipated attack must be imminent.”
The DPP therefore contends that at the time the Respondent stabbed the deceased with the knife, his life was not in imminent danger. On the effect of an act of self-defence committed after danger from the assailant is past. He therefore urged the Court to so find.

In response, learned Counsel for the Respondent submits that the finding by the learned trial Judge that the accused exceeded the powers of self defence in causing the death of the deceased, cannot be a ground for setting aside the verdict of the trial Court; neither can it be a ground for convicting the Respondent for a lesser offence, as contended. The fact that the trial Court upheld the existence of the right of private defence implies that the Respondent was justified in defending himself.
Counsel submits that the learned trial Judge, having found that the Respondent exercised his right of private defence of his person and property in good faith and without premeditation and without the intention of doing more harm than was necessary, rightly discharged and acquitted the Respondent for the offence of culpable homicide relying on Section 222(2) of the Penal Code. He submits that, the resultant death that ensued, though unfortunate and regrettable, cannot disentitle the Respondent of the protection accorded by the law. He added that the right to private defence is a complete defence, not only to the offence of culpable homicide, but also against lesser offences as well. Biruwa V State (supra) is also relied upon.
Furthermore, Counsel submits that self preservation of one’s life is a necessary concomitant of the right to life enshrined in Section 33 of the 1999 Constitution of the Federal Republic of Nigeria. Therefore, the fact that the Respondent did not take reasonable steps to disengage from the fight or make some physical withdrawal or retreat, as claimed by the Appellant, is not a ground to deny him the right of private defence provided under Section 60(1) & 2 of the Penal Code. He argues that, to hold otherwise would amount to overstretching the common law doctrine of retreat, which in any case is not applicable to this case.
Learned Counsel submits that, from the evidence of DW1 and DW2, the Respondent made efforts to ward off the attack by the deceased as part of his right to private defence of his person as well as property, and in the process, both the Respondent and the deceased sustained injuries which the latter, unfortunately, died from. He therefore submits that, the injuries sustained by the Respondent, if not explained by the prosecution,raises a presumption that same arose from the rightful exercise of private defence. He therefore submits that the learned trial Judge rightly took this into consideration before making a finding of fact and arriving at a decision. Counsel submits that since there is no appeal against the finding of fact by the trial Court that the deceased died from injuries sustained during a scuffle, the Appellant is estopped from claiming that it was the Respondent that stabbed the deceased. He thus urged the Court to dismiss the Appeal.

Findings:
It is now well settled that the following are the ingredients which must be proved by the prosecution for a successful prosecution of the offence of culpable homicide punishable with death:
1. That the death of a human being has actually taken place.
2. That such death was caused by the accused.
3. That the act was done with the intention of causing death; or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act.
For this proposition, see Rabi Isma’il V State (2011) SCNJ 102; Kaza V State (2008) 2 SCNJ 373; (2008) 7 NWLR (Pt.1085) 125; & George V State (1993) 6 SCNJ 249. These three (3) ingredients must co-exist. Where one of them is absent or tainted with some doubt, the charge is not proved. See Ochemaje V State (2008) 6 SCNJ 143.

Basically, self-defence that will have an impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable. The ingredients of self-defence as laid down by legal authorities down the years are:
(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.
See Omoregie V State (supra); Liya V State (1998) 3 NWLR (Pt.538) 397; Nwambe V State (1995) 3 NWLR (Pt.384) 385; Kwaghsir V State (1995) 3 NWLR (Pt.386) 651. In the instant case, it can be ascertained that these ingredients were established from the evidence adduced before the Court, especially in the Respondent’s statement to the Police under words of caution, i.e. Exhibit 2. The learned trial Judge dutifully considered this defence raised by the Respondent as can be seen on page 70 of the printed Record.
Self defence is the protection of one’s person against some injury attempted by another person. When an accused pleads self defence, what he’s saying is that he had no choice in the matter than to commit the offence because if he did not do that, the deceased would have killed him. In law, self defence, in order to exculpate the accused, must be commensurate or proportional to the act of the deceased. In my view, the evidence before the trial Court discloses that it was the deceased who brought out the knife which he (the deceased) struggled to recover, after the Respondent knocked it out of his hand. It was in the effort to regain control of the knife which had fallen to the ground, and in the Respondent’s effort to defend himself by preventing the deceased from getting hold of the knife again, that the stab wound was inflicted on the left leg of the deceased as well as on the arm of the Respondent.
Applying the law on the subject of self-defence to the present case, there is no doubt whatsoever that all the Respondent was required to do was to raise the defence in his plea and/or evidence, leaving the prosecution with the burden of showing without any reasonable doubt that, by the evidence called by it, what the Respondent did in causing the death of the deceased completely ruled out the defence of self-defence. In other words, the prosecution has to show that the defence was not available to the Respondent having regard to the circumstances of the case. See Omoregie V State (supra). The question now is: what was the nature of facts put forward by the Respondent in raising his plea of self-defence and how did the prosecution face the issue? Once again I refer to the statement of the accused to the Police, Exhibit B, (contained at pages 14-15 of the printed Record), which was made soon after the incident and at the earliest opportunity. He stated inter alia as follows:
“I then saw some head of cattles (sic) in my (house) farm and I went to the farm just nearby. When I reach there I saw one Masho who is now call Umaru Ahmed with his cattles (sic) inside my farm with his cattles (sic) where I planted some maize, he has push the cows in the farm destroying mu crops. I then asked him why he should enter into my farm with the cows? The said Umaru reply to me that he is not the first person to enter, but that another person whom he did not mentioned his name to me has once enter and eaten up the said maize before he came and enter with his cattles in the processed, … When I came nearer to him he showed me a knife then I hit his hand with a stick which I was holding the knife fell down. I ran to him to take the knife he march the knife with his leg and when I was trying to removed the knife from his leg. I pass my hand through his two leg I then draw the knife and cut him on his left leg and when I saw blood is rushing from his leg … I then ran and reported myself to police station at Mararaba Kunini. I know that it was me that stabbed him with knife but I have no intention to kill him.”
This statement was consistent with his evidence before the trial Court as DW2, as well as the evidence of the DW1.

On the side of the prosecution, there is no doubt that none of the witnesses who testified were eyewitnesses to the incident. PW1, Misa Manu, the Ward Head, said he only saw what happened from afar, and that while the Respondent was pointing at Umaru, (the deceased), he did not hear what they were saying. They both fell on the ground holding each other. By the time he got nearer to the scene, the accused got up, covered in blood. Under cross-examination, he stated that the incident was a fight between the Respondent and the deceased. PW2 arrived the scene after the incident and was informed of what happened by the PW1. PW3 also was informed of the incident a day after, on 03-06-10, by the wife of a former Commissioner. PW4 and PW5, as Police officers who investigated the incident, were official witnesses, and thus only testified to the limit of their investigation. From their testimonies before the trial Court, their investigations were indeed limited to only taking down statements from the Respondent. The statement, Exhibit 2, was taken by the PW4, while the statement taken by the PW5, which was tendered but rejected, was not before the trial Court. Be that as it may, I observe that the PW4 was the first investigating Police officer (IPO) who handled the matter as same was assigned to him on 11-06-10; while the PW5 was subsequently assigned the case on 26-06-10. The testimony of the PW5 as to the statement of the Respondent to the Police after the incident, as pointed out by the trial Court, was startlingly in conflict with the earlier statement made by the Respondent to the PW4, (i.e. Exhibit 2) and not in tandem with all the evidence adduced before the Court. No wonder the learned trial Judge had a hard time believing him, more so as the statement was not even before the trial Court to be tested against the evidence.
On the defence of self-defence raised by the Respondent, the learned trial Judge said thus at page 70 of the printed Record of Appeal:
“On issue 2 the acceptable evidence before me are that the deceased was the one that brought out the knife. In the process of trying to disarm the deceased of the knife a fight ensured (sic) as a result of which both the deceased and the accused person were injured. The fight was sudden and without premeditation and at the heat of passion a sudden quarrel over the destruction of the accused person’s maize farm by the deceased person’s cows. The accused was not even the offender, let alone having taken undue advantage or acted in a cruel or an unusual manner. All the accused did was to defend himself against the aggression of the deceased person who brought out a knife thereby putting the life of the accused in danger. Even though the accused exceeded the powers given to him by causing the death of the deceased, he is entitle (sic) to the defence of self defence. See Musa Vs The State (2009) 172 LRCN 1 at 9, ratio 59 and Co.”

I completely agree with the learned trial Judge that there is sufficient evidence before the trial Court to suggest that the Respondent, in causing the death of the deceased, reacted in self defence of his person, as well as his property; and the Appellant woefully failed to discharge the burden of proof on the prosecution to disprove this. The fact that the trial Court stated that the Respondent exceeded the powers given to him, I think, is merely an unfortunate choice of words since there is absolutely no evidence before it that the Respondent used excessive force in defending himself from being attacked with the knife by the deceased.
Instead, it is evident from the available credible evidence before that Court, as well as the finding of the learned trial Judge, that the Respondent was only defending himself from the aggression by the deceased, and did what it took to save his life. Perhaps if he had not made any attempt to disarm the deceased, the story would have been different today. The point is, the Respondent had ample reason to be apprehensive for his life when the deceased pulled out a lethal weapon such as a knife, and evidently, his survival instincts kicked in. The force applied by the Respondent in trying to take away the knife from the deceased has not in any way been shown to be excessive, and this cannot be presumed. Instead, it is what is in the realm of proof which the prosecution is expected to adduce, but failed to. It is therefore my finding that, on the facts in evidence before the trial Court, the defence of self defence was available to the Respondent.
There is thus no justification at all for interfering with the Judgment of the trial Court finding the Respondent not guilty of the offence of culpable homicide punishable with death, and discharging and acquitting him of same. I therefore resolve issue one in favour of the Respondent.

Issue 2: Whether there was any evidence before the trial Court upon which it should have acted to convict the Respondent on a lesser charge.
Learned Counsel for the Appellant submits that the learned trial Judge was in grave error when he discharged and acquitted the Respondent of any criminal offence. He draws attention to the finding of the Lower Court at page 70 of the Record where he found that the fight was sudden and without premeditation in the heat of passion upon a sudden quarrel over the destruction of the Respondent’s maize farm by the deceased’s cows. Having so found, Counsel submits that the proper order to have made in the circumstances was a conviction for a lesser offence under to Section 222(4) and punishable under Section 224 of the Penal Code, and not to enter an order of discharge and acquittal. Counsel submits that the learned trial Judge is vested with powers under Section 218 of the Criminal Procedure Code to convict the Respondent for a lesser offence than that which he was charged with. He relies on Ezeja V State (2008) 161 LRCN 34 @ 45 & 49; (2011) Vol. 9 LRCNCC 304; Odeh V FRN (2008) 165 LRCN 12 @ 37. Counsel accordingly called upon the Court to invoke the powers vested in it by virtue of Section 218 of the Criminal Procedure Code and these decisions of the Supreme Court to convict the Respondent for the offence contrary to Section 222(4) and punishable under Section 224 of the Penal Code.
Finally, as to the procedure to be adopted in convicting the Respondent for the lesser offence under Section 222(4) punishable under Section 224 of the Penal Code, Counsel refers to Yusuf V The State (2011) 10 SCM 109 at 110. He submits that the order of outright discharge and acquittal by the trial Court was in grave error and should be set aside.

Learned Counsel for the Respondent, in response, submits that, having contended under issue (i) that the learned trial Judge was right in upholding the Respondent’s right of private defence, which is a complete defence, the trial Court could not have convicted him of a lesser offence under Section 222(4) of the Penal Code or indeed under any other provision of the Penal Code. While conceding that a trial Court has the power to convict for a lesser offence, Counsel submits that it is not shown that the evidence before the trial Court proved any lesser offence, much less one under Section 222(4) of the Penal Code, to warrant a conviction on same. Counsel contends that, in any case, it was the duty of Counsel to draw trial Court’s attention before Judgment was delivered, on his observation that the evidence disclosed an offence different from that with which the accused was charged. The Appellant failed to do just that. Counsel thus submits that a Court cannot convict for any lesser and nebulous offence. He submits that in the case of Apugo V State 2006 (2) ALL NLR 2 @ PP & 16, the Supreme Court observed that the trial Court, having found that the Appellant had acted in self defence, was wrong to then proceed to find the Appellant guilty of the offence of manslaughter arising from the same facts. A defence of self defence, where it avails an accused person justifies or excuses by law, the act of the accused thereby rendering him liable for the offence charged. It is usually a complete defence to the charge where it is upheld.

Learned Counsel therefore submits that the finding by the trial Court that there was no evidence to convict the Respondent for the offence charged, and consequently, discharged and acquitted him, makes the discharge and acquittal unassailable. He argues that to convict him of a lesser offence based on the same facts, will amount to double jeopardy.
In the instant case, Counsel contends that the trial Court evaluated the evidence of the prosecution, as well as the defence, chose to believe that of the defence in preference to the prosecution, and thus made a finding on the basis of same. Reliance is placed on Sule V State (2009) 17 NWLR (Pt.33) @ 57. Counsel submits that the appellate Court hardly disturbs findings of facts except when same is perverse. He relies on Egbesimba V Onuzuruike (2002) 15 NWLR (Pt. 791) 466 @ 524, and submits that this is not one such case.
Finally, on the submission that exhibit 2 amounted to a confession by the Respondent that he caused the death of the deceased Counsel submits that this is a misconception. He submits that a holistic reading of the said exhibit clearly shows that, it was in the process of retrieving the knife in between the deceased legs that a cut resulted on deceased’s left leg, and not a stab, as alleged. He therefore urged the Court to dismiss the Appeal on this ground as well.

Findings
The power to convict a person for a lesser offence that was proved in place of the original greater offence charged is available, not only to the trial criminal courts but also to the appellate courts, including the Court of Appeal and the Supreme Court, by virtue of Section 218 of the Criminal Procedure Code. See Adava V State (2006) 9 NWLR (Pt. 984) 152 @ 169. However, contrary to the submissions of learned Counsel for the Appellant, the evidence before the trial Court did not disclose a lesser offence for which the Respondent should have been convicted. Instead, the Respondent, having successfully raised the defence of self-defence which the Appellant failed to effectively invalidate, and which was upheld by the trial Court, it became a complete defence to the charge of culpable homicide, totally exonerating him from guilt. There is also no merit in the contention advanced by Counsel for the Appellant concerning the alleged contradictions in the case of the Respondent in regard to the defence of self defence set up and rightly accepted by the trial Judge. I find that the evidence before the Lower Court did not disclose a lesser offence which the trial Court should have acted upon to convict the Respondent. I therefore resolve this issue also in favour of the Respondent.
Issue 3: Whether the verdict of the trial Court discharging and acquitting the Appellant was based solely on its finding that there were some contradictions in the prosecution’s case.
The learned DPP for the Appellant submits that, a careful perusal of the evidence of PW1 at pages 20-21 of the printed Record indicates that he was an eye witness to the fight between the deceased and the Respondent. He argues that it is not in doubt that it was the act of the Respondent in stabbing the deceased on the thigh with a knife that caused his (deceased’s) death. Counsel further submits that the guilt of an accused person can be proved either by an eye witness account, a confessional or extra-judicial statement, or by circumstantial evidence. Emeka V State (2001) 14 NWLR (Pt.734) 668 @ 683 is relied on.
Counsel therefore submits that the Appellant, having proved the guilt of the Respondent by the eye witness account of PW1, the learned trial judge was in grave error when he discharged and acquitted the Respondent. He submits that the Exhibit 2 amounted to a confessional statement and leaves no doubt as to who killed the deceased. Accordingly, he urged the Court to hold that an accused person can be convicted solely on his confessional statement.

He further contends that, apart from the confessional statement of the Respondent, (Exhibit 2), the evidence of the PW1 points unequivocally to the circumstances which made it probable that the confession is true. He argues that the Respondent has, by Exhibit 2, identified himself as the person who caused the death of the deceased. Reference is made to Ikemson V State (1989) 3 NWLR (Pt.110) 455 @ 458-461 ratios 5, 9 and 21; & Shurumo V State (2011) 196 LRCN 199 @ 209 ratio 13. Counsel thus urged the Court to set aside the order of discharge and acquittal by the learned trial Court and enter a verdict of conviction of the Respondent.
Learned Counsel further submits that the learned trial Judge based his findings on a faulty reasoning and error when he found that testimony of the PW5 contradicted the evidence of the PW4, and the Exhibit 1. Counsel submits that the evidence of prosecution against the Respondent in the trial Court was overwhelming, cogent, unequivocal, unchallenged and not debunked by the defence in any material particular. He contends that in addition, there was no contradiction in the evidence of prosecution witnesses. Even if there was any contradiction at all, Counsel submits that they were minor, inconsequential and they do not affect the kernel of the prosecution’s case. Therefore, such should not have vitiated the case of the prosecution. Reliance is placed on Maiyaki V State (2008) 160 LRCN 8.
Counsel therefore urged the Court to allow the Appeal and set aside the order of discharge and acquittal of the Respondent. In its place, he asked the Court to enter an order of conviction for the offence charged or for a lesser offence, as the justice of the case requires.

On his part, learned Counsel for the Respondent, submits that the Appellant’s grouse is that the trial Court failed to make a finding that the PW1 was an eye witness to the fight rather than to the cause of death. He contends that while the PW1 may have been an eye witness to the fight albeit from a distance, but he certainly was not a witness to the cause of death, especially in view of the evidence of the DW1 who was an eye witness and whose evidence the trial Court believed. Counsel submits that it is the duty of the trial Court to evaluate and ascribe probative value to the evidence adduced before it, which it did in this case. He submits that the appellate Court hardly disturbs such findings except when same is perverse. Reliance is paid on Egbesimba V Onuzuruike (2002) 15 NWLR (Pt.791) 466 @ 524.
Counsel further submits that the trial Court did not solely, (if at all), discharge and acquit the Respondent on the basis of the contradictory evidence of PW4 and Exhibit 1. Rather, the Respondent was discharged and acquitted for failure of the prosecution to attain the standard required in proof of the offence charged, that is, proof beyond reasonable doubt. He thus urged the Court to hold that the Appeal lacks merit and to dismiss same.

Findings:
The burden of proof in our adversarial system of criminal justice is for the prosecution to prove its case beyond reasonable doubt. In so doing, the law requires the prosecution to prove all the essential ingredients/elements of an offence as contained in the charge. The law places the burden on the prosecution to produce vital material evidence and witnesses to testify during course of proceedings, before the trial Court can come to the conclusion that an offence was committed by a person accused. This is the way I.T. Muhammed, JSC, lucidly described the process in Chukwuma (aka Goddy) V State (2011) 5 SCNJ 40 @ 55:
“The prosecution does not need a magic wand in order to attain its proof to be beyond reasonable doubt. All the prosecution is required to do simply is to put forward to the court evidence which is so strong, compelling and convincing against the accused such that it leaves no reasonable man in doubt as to the probability of the accused person committing the alleged offence. That in effect is the interpretation given by our superior courts to the common law origin phrase of “beyond reasonable doubt” which has been embellished in Section 138 of the Evidence Act CAP 112 LFN, 1990 [Cap. E14 LFN, 2004].”
Proof beyond reasonable doubt indeed does not mean proof beyond all doubt, or all shadow of doubt. It just means that the prosecution is required to establish the culpability of the accused person with convincing, compelling and irrefutable evidence. It means a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt is not achieved by the prosecution calling numerous witnesses to testify. The court is only interested in the testimony of a quality witness, so long as the charge is not one that needs corroboration. See: Joseph V State (2011) 6 SCNJ 222 @ 235 per Rhodes-Vivour, JSC.
Again, proof beyond reasonable doubt does not mean proof to the hilt; neither does it mean proof beyond an iota of doubt, nor proof beyond a shadow of doubt. See Gambo Musa V State (2009) 7 SCNJ 329 @ 347 per Fabiyi, JSC; & Nasiru V State (1999) NWLR (Pt. 589) 87 per Uwais, CJN.
As Denning, J. (as he then was), observed in Miller V Minister of Pensions (1947) 2 ALL ER 372:
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘Of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt. But nothing short of that will suffice.”
From the statement of the law set out as above in numerous decisions of the Apex Court, the law is settled on the requirement of proof beyond reasonable doubt to secure a conviction for any criminal offence by virtue of Section 138 (1) of the Evidence Act. Therefore, if on the entire evidence adduced before a trial Court, that court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is on the credible evidence of a single witness. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it, thereby entitling the accused person to the benefit of the doubt, resulting in his discharge and acquittal. See Afolalu V State (2010) 7 SCNJ 354; State V Danjuma (1997) 5 NWLR (Pt. 506) 512; Posu V State (2011) 2 SCNJ 27.
It is more often the case that it is not in every case of culpable homicide punishable with death that eye-witness evidence is available to prove a case. Thus, an accused person can be convicted of the offence charged if, and only if, there exists cogent and compelling circumstantial evidence to establish the fact that the accused killed the victim. See: Jua V State 2010) 2 SCNJ 224; Akpan V State (2000) 12 NWLR (Pt. 682) 667; Onah V State (1985) 3 NWLR (Pt. 12) 236.
Learned Counsel for the Appellant has made heavy weather of surmised contradictions pin-pointed by him, which he submits the trial Court used to discharge and acquit the Respondent of the offence charged. The word ‘contradiction’ traces its lexical roots to two Latin words, namely, ‘contra’ and ‘dictum’, which means ‘to say the opposite’. See Eke V State (2011) 2 SCNJ 57; Ikemson V State (1989) 3 NWLR (Pt. 110) 455.
It is basic that the testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. Thus, for contradictions in the evidence of witnesses to vitiate the decision of a court, they must be material and substantial. Such contradictions should be so material to the extent that they cast serious doubt on the case presented as a whole, (by the party on whose behalf the witnesses testified), or as to the reliability of such witnesses. In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party. See: Eke V State (supra); Afolalu V State (supra); Okoziebo V State (2003) 11 NWLR (Pt. 831) 327; Nasiru V State (1999) 2 NWLR (Pt. 589) 87.
In the instant appeal, the contradiction highlighted by the learned trial Judge in the evidence of the PW5 vis a vis the testimony of the PW4 and the Exhibit 2, (the statement of the Respondent to the Police), was certainly within his duty of evaluating the evidence before him. Indeed, he said no more than what was apparent from the Record, which is that, PW5, being the second IPO in the case, gave evidence concerning the statement of the accused which was neither borne out by the evidence of the first I.P.O., i.e. PW4, nor by the statement of the accused itself before the trial Court recorded by the PW4. The alleged statement which PW5 said the accused made to him, stating something different from what was before the trial Court from the prosecution’s own witness, PW4, was not even in evidence, as it was tendered but marked rejected. Even at that, the decision of the Lower Court in discharging and acquitting the Respondent was not based solely on this inconsistent position of the prosecution’s own two (2) witnesses. Instead, the prosecution’s case was afflicted with a more serious burden, in that it failed to adduce either direct or indirect evidence in proof of its case. In other words, there was neither eyewitness evidence nor circumstantial evidence to establish the guilt of the Respondent. All that the trial Court had to work with was the eyewitness testimony of the DW1 and the statement of the Respondent himself, wherein they both gave graphic and consistent accounts of how the incident took place. He cannot be faulted on this.
In addition, the Appellant has submitted that the learned trial Judge acted in error when he failed to act on the confessional statement of the Respondent, reference made to the Exhibit 2. But was it really a confessional statement as defined by law? By virtue of Section 27 (1) and (2) of the Evidence Act, a confessional statement is a statement by an accused person charged with an offence stating that he committed the offence. It is a voluntary admission by a person of his participation in a crime. It has been settled in a long line of decided authorities that, in appropriate cases, an accused person can be properly convicted on his or her confessional statement alone. See Ojegele V State (1988) 1 NSCC 276. However, it is always desirable to have some evidence outside the confession in further proof of the offence. Such confession must be direct, positive, true and unequivocal of facts that satisfy the ingredients of the offence the accused person confesses to have committed. See Ogudo V State (2011) 12 SCNJ 1. It is also the law that a confessional statement made by an accused person, properly admitted in evidence is the best pointer to the truth of the role played by such accused person in the commission of the offence. And such a confessional statement can be accepted as satisfactory evidence upon which, alone, the accused can be convicted.
On a close inspection of the Exhibit 2, it is obvious that the Accused/Respondent did not positively and unequivocally admit that he committed the offence. It is not enough that he admitted that he was responsible for the stab wound on the deceased’s left leg which led to his death. Section 221(b) of the Penal Code requires much more than that. For Exhibit 2 to have amounted to a confession, properly so-called, the Respondent must have admitted therein to all the three (3) ingredients of the offence as contained in Section 221 (b) of the Penal Code. In other words, the actus reus must be accompanied by the mens rea in order to amount to the offence. However, he did not. All he admitted to, was that, in the course of defending himself from an attack by the deceased, who had threatened him with a knife, there ensued a scuffle/fight in which both of them struggled for the knife. In the process, both sustained knife wounds and the deceased unfortunately died from his wounds. In other words, Exhibit 2 did not at all amount to a confession because it is not unequivocal of facts that satisfy all the ingredients of the offence.

Furthermore, no serious attempt was made by the prosecution to establish that the Respondent committed the act with the intention of causing death or knowing that death would be the probable consequence of his action. Indeed, no attempt at all was made to debunk the Respondent’s defence of self-defence. Based on all the above, I find that verdict of the trial Court discharging and acquitting the Appellant was certainly not based solely on its finding that there were some contradictions in the prosecution’s case. Instead, it was based on the fact that, overall, the Appellant woefully failed to discharge the onus of proof on it to prove all the ingredients of the offence against the Respondent. Issue three is also resolved in favour of the Respondent.

From all that I have said, I find no merit in this Appeal. It fails and is accordingly dismissed. The order of discharge and acquittal of the Respondent, Sheevo Shonto, made by the High Court of Taraba State sitting in Jalingo, in Suit No.TRSJ/29c/10 between The State V Sheevo Shonto, delivered on 5th March, 2012, is hereby affirmed. No costs are awarded.

JIMI OLUKAYODE BADA, J.C.A.: I have read in draft the lead judgment of my Lord JUMMAI HANNATU SANKEY, JCA just delivered.
I am in complete agreement with my Lord that the Appeal lacks merit and it accordingly fails.
I too dismissed the Appeal for failure of the Appellant to discharge the onus of proof on it to prove all the ingredients of the offence against the Respondent.

I abide by the consequential orders made in the said judgment.

ADAMU JAURO, J.C.A.: I had the opportunity of reading before now the lead judgment just delivered by my learned brother, JUMMAI HANNATU SANKEY, J.C.A. I am in agreement with his Lordship’s reasoning and conclusion that the appeal lacks merit.
I adopt the said judgment as mine and hereby dismiss the appeal and affirm the judgment of the Lower Court.

Appearances

Mr. A. Y. Shitta, D. P. P. Taraba State M. O. J., with him, Mr. Z. Y. Usman, SSC II.For Appellant

AND

Mr. A. B. Panyi, holding the brief of Dr. B. A. Bukar.For Respondent