ADEYINKA ALBERT LAOYE V. THE STATE
In The Supreme Court of Nigeria
On Friday, the 25th day of October, 1985
SC.200/1984
JUSTICES
KAYODE ESO Justice of The Supreme Court of Nigeria
AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria
DAHUNSI OLUGBEMI COKER Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
SAIDU KAWU Justice of The Supreme Court of Nigeria
Between
ADEYINKA ALBERT LAOYE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT A DEFENCE NO MATTER HOW STUPID MUST BE CONSIDERED
It is the law that a defence however stupid must be considered. Whatever consideration the learned trial judge gave to the appellant’s defence in this case one thing appears certain, he did not specifically decide it”. PER NNAMANI, J.S.C.
WHETHER OR NOT IT IS THE DUTY F THE COURT TO CONSIDER ALL POSSIBLE DEFENCES OPEN TO AN ACCUSED PERSON
It is trite law that it is the duty of the court to consider all possible defences open to an accused person on the evidence before the court or even from his statements to the Police, notwithstanding that such defences were not specifically raised by the accused person or his counsel. It is equally trite that such possible defences ought to be fully considered no matter how stupid they may seem. PER NNAMANI, J.S.C.
THE INGREDIENTS OF THE DEFENCE OF PROVOCATION
This was a cursory consideration of the defence of provocation indeed. Were the ingredients of that defence as contained in Section 221 of the Criminal Code of Western Nigeria present here Was the killing (a) in the heat of passion (b) caused by sudden provocation (c) before there was time for appellant’s passion to cool Was there an act of provocation to the appellant leading to loss of self control and was there a retaliation not disproportionate to the provocation offered
(See Lee Chan Chien v. The Queen (1962) 3 W.L.R. 146; R v Nwanjoku (1937) 3 W.A.C.A. 208; R. v Afonja (1955) 15 W.A.C.A. 26 and R. v Duffy (1949) 1 All E.R. 932). PER NNAMANI, J.S.C.
THE APPLICABLE LAWS TO THE DEFENCE OF SELF-DEFENCE
Now to self defence. As earlier stated I have no doubt in my mind that the evidence of the appellant raised a strong defence of self defence in his favour. The applicable laws are Sections 223 and 224 of the Criminal Code of Western Nigeria which correspond to the provisions of Sections 286 and 287 of the Criminal Code. Can the appellant on that evidence fall within any of those two sections In my view Section 223 cannot avail him. That section….deals with the case in which the accused is unlawfully assaulted and has not provoked the assault. The evidence is that it was indeed the appellant who provoked the deceased to assault him. I think that it is rather Section 224 which applies to the facts of this case. That section is in these terms:
“224. When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm or to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force cause death or grievous harm.
This protection does not extend to a case in which the person using force, which causes death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person; nor to a case in which the person using force which causes death or grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose; nor, in either case, unless before such necessity arose the person using force declined further conflict, and quitted it or retreated from it as far as was practicable”. PER NNAMANI, J.S.C.
WHETHER OR NOT THE COURT IS TO RELY ON THE EVIDENCE OF AN ACCUSED PERSON WHERE IT IS THE ONLY EVIDENCE BEFORE THE COURT
It is now well settled that where the only evidence before the Court is that of the accused which remains uncontradicted throughout the trial, if believed the court has no option but to rely on such evidence. See R. v. Nwibo (1950)19 NLR.124 R v. Igwe (1938) 4 WACA.118. In Nomeh Okoh v. The State (1975)9-11 S.C. 17, the case for the prosecution was based on the statement of appellant to the Police. It was on this that the prosecution relied as proof of the cause of injury on the stomach of the deceased. There was no other evidence of how the injury was inflicted to support the ingredient of unlawful killing. The evidence relied upon was that appellant whilst he was being chased waived his matched behind in order to ward off the attack of the deceased who himself was chasing the appellant. The appellant cut the deceased in his stomach. The conviction for murder was set aside on the ground of a successful defence of self-defence. PER COKER, J.S.C.
NNAMANI, J.S.C. (Delivering the Leading Judgment): This is indeed a most tragic case. The deceased, Stephen Afere, appellant and 1st prosecution witness, Akintokunde Akindahunsi were all students of the University of Ife, IIe-Ife. They were also friends. On the 15th March, 1982 at about 6.30p.m. the appellant and the deceased, Stephen Afere, went to a house at Ondo Road, Modakeke to collect a book from one Alaba. Incidentally, Alaba lived in the same house as the 1st prosecution witness. As Alaba was not in, and as the book could not be found, the 3 of them i.e. appellant, deceased and Akindahunsi walked back to the campus of the University.
According to the first prosecution witness, he walked slightly ahead of the other two. Then at a point he realised that they were having an argument. When he turned back the two of them were having a scuffle. He moved nearer and found that the argument was over a girl-friend. As he appealed to their sense of reason, the appellant stabbed him on the palm. He bled badly and had to leave for the University junction. As he ran, he heard shouts from the direction of both of them, particularly shouts of pain from the deceased.
From this incident, the deceased Stephen Afere died and the appellant, Adeyinka Laoye, was arraigned before Apara, J. at the Ile Ife High Court charged with his murder. 8 witnesses testified for the prosecution while the appellant testified in his own defence and called no witness. On 22nd August, 1983 judgment was delivered and the appellant was found guilty of manslaughter and sentenced to 5 years imprisonment. It is pertinent at this stage to refer to the reasoning on which the learned trial judge finally arrived at his conclusion. He said –
“What happened from this stage on is of paramount importance. The accused admitted in court that he had a bigger stature physically than the deceased. The accused also admitted in court that he knew some karate. With this combination, if he brought out his own knife one could understand the situation if the accused had just stabbed the deceased’s shoulder once only and combined it with his karate knowledge to disarm the deceased. The accused did not do this. According to the Doctor who performed the post mortem examination on the deceased, the deceased had five serious stab wounds which caused his death. As it was only the accused and the deceased who fought with knives, the only irresistible conclusion I have drawn is that it was the accused who inflicted the five serious wounds on the deceased, and it was these wounds that killed the deceased. My conclusion here is that the defence offered by the accused was far in excess of the attack offered by the deceased. The long and short of this is that this incident started as a quarrel between the accused and the deceased and eventually resulted in a fight in which the accused used his knife freely our of proportion to the attack offered by the deceased. I say this because the accused had just one slight wound on his leg to show for the combat. No time intervened between the quarrel and the fight between the two of them. Therefore passions had not cooled off (Italics mine)
The appellant appealed to the Court of Appeal which in a majority judgment (Kutigi and Babalakin, J.J.C.A., with Ogundare, J.C.A. dissenting) delivered on 28th June, 1984 dismissed his appeal and affirmed the conviction and sentence passed on him by the High Court. The appellant has now appealed to this Court.
Originally, 4 grounds of appeal were filed. Subsequently, following leave granted by this Court on 30th September, 1985, 3 additional grounds were filed and argued. I do not propose to set down all 7 grounds of appeal which to my mind goes to the root of the question to be determined in this appeal- that question being, as formulated in the brief of the learned Deputy Director of Public Prosecution, Oyo State, for the Respondent, “whether the evidence adduced by the appellant is sufficient to enable the Trial Court consider defence of self defence rather than provocation in favour of the appellant in which case the appellant ought to have been discharged and acquitted of the offence of murder”.
In the ground of appeal the appellant complained that
“The Lower Court erred in Law in dismissing the appellant’s appeal before it on the ground that the appellant did not establish the defence of self defence before the trial court.
Particulars of Error
(a) Reliance on first prosecution’s witness evidence which by and large is not reliable and which the trial judge did not believe, even when the same first prosecution witness admitted that both the appellant and the deceased were defending themselves with object he could not know
(b) Failure to consider the whole evidence before the trial judge which should not have led the lower court from reaching the conclusion that there was no sufficient evidence to support the plea of ‘self defence’ as raised by the accused when the evidence of the 4th P.W.; 8th P.W. -Jacob Awodiran; the Prisoner’s evidence on oath are very relevant.
(c) The trial Judge finds as follows:-
“Even at that stage the matter had not yet got out of hand. Then the deceased drew out a knife, the accused kicked the deceased and sustained an injury on his leg from the knife of the deceased. Then the accused brought out his own knife “this finding amounts to acceptance of the plea of ‘self defence’ (Sic) therefore wrong for the appellate court to hold that there is no where the trial court accepted the defence of ‘self defence'”
(d) That the trial judge accepted that both the prisoner and the deceased were fighting with knifes but the trial judge’s judgment in convicting the appellant was based on the fact that the defence offered by the prisoner was far in excess of the attack offered by the deceased which is not the same thing as rejecting the Prisoner’s plea of ‘self defence’ or based its judgment on provocation.
(e) Failure to consider the trial court’s findings that the evidence of the prisoner/appellant based on ‘self defence’ stands uncontradicted which in its wider interpretation mean the prosecution has not dislodged the prisoner’s defence of ‘self defence’ this amount to acceptance of the prisoner’s defence of ‘self defence'”
In his submissions in his brief of argument and before this Court, learned counsel to the appellant, Mr. Nwankpa, contended that the appellant gave evidence of self defence which was accepted by the learned trial judge. He submitted that the learned trial judge having held that the testimony of the appellant was uncontradicted ought to have upheld the defence of self defence. He referred to Bridges v. North London Railway Company 1874 L.R. 7 H.L.233 and State v. Oka 1975 9-11 S.C. 17. On the law applicable to the facts as accepted by the learned trial judge, he referred to Section 223 of the Criminal Code of Oyo State. On reasonable apprehension of death, counsel referred to the testimony of the appellant which showed that the deceased had attacked him 3 times before he struck the fatal blows. It was his contention that the appellant believed that he was in danger of losing his own life.
The learned Deputy Director of Public Prosecution, Oyo State, Dr. (Mrs.) Olateru-Olagbegi, relied on her brief of argument. She urged this Court to uphold the judgments of the High Court and the Court of Appeal. Although she conceded that the learned trial judge held the testimony of the appellant uncontradicted, she maintained that the trial judge never accepted the evidence of self defence. She submitted that as distinct from the facts in R. v. Knock (1877) 14 Cox C.C.I the deceased and the appellant were engaged in a scuffle. If the parties were engaged in a fight as against mere resistance in self defence, she submitted, the appellant was doing something unlawful and was rightly found guilty of manslaughter. The learned Deputy Director of Public Prosecutions also strongly supported the learned trial judge’s and the Court of Appeal’s acceptance of a defence of provocation.
As was stated earlier in this judgment, the main issue to be determined is whether on the evidence which the trial Court accepted the defence of self defence was available to the appellant. Only 3 persons were eyewitnesses to this incident – the deceased, the appellant, and the first prosecution witness, Akintokunde Akindahunsi. The deceased has carried his own version of the events to the grave and only Providence can say what that story could have been. The first prosecution witness who was quite near to the two combatants was not as helpful. Instances of this abound. In his evidence in chief, he testified that it was the deceased, Afere, who shouted in pain. In cross examination, he now said that “the shout of anguish I heard resembled that of Afere”; again in evidence in chief he testified that it was the appellant who stabbed him with a knife, but on the all important issue of whether the deceased was armed with any weapon he said in cross-examination.
“By the time I got to the two of them, the scuffle had started, and each one was defending himself from the other. It was dark and I could not know how each was defending himself in detail. I therefore could not know if the deceased also had a knife with which he was defending himself”
This meant that the only detailed account of the events of that evening was that given by the appellant. His testimony in court is so vital to the consideration of this appeal that I shall set it down at considerable length. He said”
……When we got to Alaba’s house he was out, but we met the 1st P.W. We looked for the book we came for but to no avail. We then headed back for the Campus in company of the 1st P.W. We stopped at the Beacon restaurant for minerals. As we could not get transport, we started to trek towards our destination. As we went along, I passed a remark on the deceased’s girl friend. He was very serious over the girl and I said the girl was not worth it. He took offence and flew into a rage and he slapped me. I slapped him back and a fight ensued. Suddenly he drew out a knife as he had a small stature. If I ran he would easily catch me up as he was a good sprinter. So I kicked him as he tried to stab me. He fell down. Then I noted that he had stabbed me on the right leg with which I kicked him. As I bent down to check the wound, he came to me again with a knife. As I tried to back away, I tripped and fell down. He fell on me and his knife grazed my shoulder. It bled. I managed to get up before him. As he came at me again I brought my own knife. As he held his knife with his left hand, I struck him on the left shoulder with my knife. From that stage I can’t remember what happened again as the situation was confused. When the situation subsided and we were both standing, I threw my knife and his own away into bush. We both decided to go into hospital for treatment. We then both planned to tell the Hospital authorities that we were attacked by robbers. When we got to the Ile-Ife – Ibadan – Ondo junction we stopped for a lift. We eventually got a lift from a friend who took us to the hospital. There the deceased told them we were attacked by robbers. He sat on a bench there and Babatunde Ogunde and I went to the House Officers Quarters to find some friends for help. We were told they were on strike. We returned to wait in the hospital. Eventually the deceased was admitted. I and some friends went to look for blood for transfusion for the deceased. Before we returned, he was dead. In physical combat, I could bear the deceased. If the deceased had not brought out a knife, I wouldn’t have brought out mine. I was also treated for my injuries in the same hospital by a doctor Felipe Almacher. It was when we were waiting for a lift that I knew Afere’s wounds were serious. I was only defending myself during this incident.” (Italics mine)
Also ……………………………….
“At that time, most members of the students at Unife carried knives about because it was around that time Arogundade was beheaded in Ife by unknown people. Arogundade was a student at Unife. Even the 1st P.W. had a knife with him that day”. At the close of the case of the prosecution and defence, the learned trial judge did not embark on what could properly be termed an evaluation of the evidence before him, nor did he make specific findings of facts to which he would have applied the relevant law. To this extent I regret to say that I share the views expressed by Ogundare, J.C.A. as to the manner in which the learned trial judge dealt with the evidence before him. The learned Justice of Appeal in his minority judgment lamented –
“It is on record that Mr. Lawal submitted thus:
“….It was the deceased who first drew out a knife. The accused was entitled to defend himself. Sections 223 and 224 of Western Nigeria Criminal Code will avail the accused’. Nowhere did the learned trial judge make reference to these sections of the Criminal Code, let alone consider them in the light of the evidence before him. He did not comment on the credibility of the evidence before him, let alone to make specific findings of facts unless his “analysis of the case” is taken as his findings. Finally, he did not make specific findings as to where or not he found the defence of self defence established. It is the law that a defence however stupid must be considered. Whatever consideration the learned trial judge gave to the appellant’s defence in this case one thing appears certain, he did not specifically decide it”
Nevertheless, the learned trial judge came to some conclusion on the evidence before him and it is that conclusion that is most essential for consideration of the main issue in this appeal.
On the evidence he said –
“I have considered the evidence advanced both by the prosecution and the defence in this case. I have given a serious consideration to Mr. Lawal’s submissions. The most important point to decide here is what really happened immediately before the knife duel between the accused and the deceased. The only independent eye witness of this incident i.e. Akindahunsi told the court that as it was dark at the time, he could not tell exactly what happened. The other two eye witnesses were the accused and the deceased. The deceased is dead and has taken his story with him to the grave. What I am left with now is the story of the accused which stands uncontradicted” (Italic mine)
With all respect if the story of the appellant stands uncontradicted then it is to the facts as put forward by the appellant that the learned trial judge had to relate the applicable law. (See The State v. Oka (1975) 9-11 S.C. 17). Regrettably, neither he nor the learned majority Justices of the Court of Appeal did this. Were there any lines of defence open to the appellant from that story It is trite law that it is the duty of the court to consider all possible defences open to an accused person on the evidence before the court or even from his statements to the Police, notwithstanding that such defences were not specifically raised by the accused person or his counsel. It is equally trite that such possible defences ought to be fully considered no matter how stupid they may seem. There is nothing in the judgment of the learned trial judge to indicate that he considered the defence of self defence. The only reference to something remotely close to it can be found in the passage of the judgment where he said –
“According to the doctor who performed the post mortem examination on the deceased, the deceased had five serious stab wounds which caused his death. As it was only the accused and the deceased who fought with knives, the only irresistible conclusion I have drawn is that it was the accused who inflicted the five serious wounds that killed the deceased. My conclusion here is that the defence offered by the accused was far in excess of the attack offered by the deceased”
If this was rejection of the defence of self defence on grounds of excessive use of force, and since I shall show aliunde that the defence of provocation was really not available to the appellant, he ought to have returned a verdict of guilty of murder See R v. Mc Innes (1971) 3 All E.R. 295 C.A.
On its own part, the Court of Appeal i.e. the learned majority justices, though they accepted the conclusion of the learned trial judge on the evidence before him did not fully consider a possibly defence of self defence; for they too did not even refer to the applicable laws. While correctly stating the law as to onus of proof where the defence of self defence arises, and also that “if the issue of self defence is to be decided, there must be some evidence from which the judge would be entitled to find that issue in favour of the appellant and ordinarily no doubt such evidence would be given by the defence”, the learned majority justices of the Court of Appeal seem to have held that no such defence arose from the evidence. In his lead judgment Kutigi, J.CA. said that
“the only question left to be considered and which the trial judge did consider is whether having regard to the evidence and circumstances of the case as a whole any defence was opened to the appellant”
He referred to the concluding part of the appellant’s evidence where he said “I was only defending myself during this incident” and continued, “That “sentence” alone cannot and does not establish the defence of self defence as Chief Fadugba would want this Court to believe. The whole evidence before the Court ought to be considered to see whether self defence or any defence at all is open to the accused. In my view the relevant evidence for consideration in this regard is that of the P.W.1 and that of the appellant himself. I have already set them out above. Nowhere in his evidence did P.W.1 say that the deceased was armed. Rather it was the appellant who was holding a knife and even stabbed P.W.1 with it”
With all respect, the learned justices of the Court of Appeal could not be right in taking the sentence referred to above in isolation from the whole evidence of the appellant which I have set down above and from which a possible defence of self defence stands out. Learned Deputy Director of Public Prosecutions, Oyo State, relying on the case of Karuwa Takida v. The State (1969) All N.L.R. 270 submitted that a court is not to speculate on the possible line of defence open to an accused person. I agree, but the portions of the appellant’s evidence which I italicised take this matter beyond the realm of speculation. I do not know what other possible defence arises from that testimony, which, be it remembered, is the only one accepted by the trial Court, if self defence does not. I rather suspect, again with due respect, that the learned majority justices of the Court of Appeal could have arrived at this conclusion only because of 3 serious misdirections on the evidence. To start with although it is correct that no where did the P.W.1 say that the deceased was armed, he however said in cross-examination that he was not sure about this as it was dark. In any case the appellant testified that both he and the deceased were armed with knives and the learned trial judge accepted this. The second misdirection occurred in the passage of the lead judgment in which the learned Justice of Appeal said-
“It is perhaps significant to note that the appellant did not call the doctor who treated him for the injuries he received during the scuffle”
But in Exhibit K tendered at the trial by the prosecution the boss of the doctor who treated the appellant’s injuries stated that the Doctor, Felipe Almachar, had returned to the Philippines. The evidence of Simeon Afolabi was as to the non-availability of appellant’s doctor.
Thirdly, the learned majority justices assumed that there was uncontraverted evidence by P.W.1. that it was the appellant who stabbed him. On the contrary under cross-examination the witness said-
“I did not actually see the accused stab me. I only concluded it must be him that stabbed me, judging from the circumstances of the situation”.
There was clearly on the evidence before the trial Court a possible defence of self defence. But before considering that defence I ought to deal, even if briefly, with the two defences which the two lower courts seemed to feel were available. As to chance medley implicit in the learned trial judge’s reference to R v. Snow 1 Leach’s Crown Cases 151 I shall devote very little time as that is not part of our law in this country. Then there is provocation. Although as the learned majority justices of the Court of Appeal stated the word was never used by the learned trial judge, I am in agreement with them that that was clearly what he had in mind in the passage in his judgment where he said:
“No time intervened between the quarrel and the fight between the two of them. Therefore passions had not cooled off”
This was a cursory consideration of the defence of provocation indeed. Were the ingredients of that defence as contained in Section 221 of the Criminal Code of Western Nigeria present here Was the killing (a) in the heat of passion (b) caused by sudden provocation (c) before there was time for appellant’s passion to cool Was there an act of provocation to the appellant leading to loss of self control and was there a retaliation not disproportionate to the provocation offered
(See Lee Chan Chien v. The Queen (1962) 3 W.L.R. 146; R v Nwanjoku (1937) 3 W.A.C.A. 208; R. v Afonja (1955) 15 W.A.C.A. 26 and R. v Duffy (1949) 1 All E.R. 932) The answers must be in the negative. The appellant never raised any defence of provocation and I see nothing in his evidence that could sustain such a defence. If the appellant was provoked was it at the point he was slapped Or was it at the beginning of each of the 3 attacks he described in his evidence or at the end of the third attack at which he claimed he was confused and did not know what happened Infact the act of provocation was directed to the deceased and it was he who was ‘provoked’ in the sense of being angry. The appellant testified that his remarks about deceased’s girl friend threw him into a rage. Even if it could be conceded that the appellant was angry at any stage could it be said that the force he used was not disproportionate to the provocation It is my considered view that on the evidence before the trial court this defence was not available to the appellant.
Now to self defence. As earlier stated I have no doubt in my mind that the evidence of the appellant raised a strong defence of self defence in his favour. The applicable laws are Sections 223 and 224 of the Criminal Code of Western Nigeria which correspond to the provisions of Sections 286 and 287 of the Criminal Code. Can the appellant on that evidence fall within any of those two sections In my view Section 223 cannot avail him. That section….deals with the case in which the accused is unlawfully assaulted and has not provoked the assault. The evidence is that it was indeed the appellant who provoked the deceased to assault him. I think that it is rather Section 224 which applies to the facts of this case. That section is in these terms:
“224. When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm or to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force cause death or grievous harm.
This protection does not extend to a case in which the person using force, which causes death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person; nor to a case in which the person using force which causes death or grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose; nor, in either case, unless before such necessity arose the person using force declined further conflict, and quitted it or retreated from it as far as was practicable”
I have set down the testimony of the appellant at great length in this judgment but even at the risk of repetition let me recapitulate on the most graphic moments of that deadly encounter.
“Then I noted that he had stabbed me on the right leg with which I kicked him. As I bent down to check the wound he came at me again with a knife. As I tried to back away, I tripped and fell down. He fell on me and his knife grazed my shoulder. It bled. I managed to get up before him. As he came at me again I brought out my own knife.
As he held the knife with his left hand I struck him on the left shoulder with my knife so he could drop the knife”.
In ordinary language the law would excuse a killing if the killer had reasonable grounds for believing that his own life was in danger and that he had to kill in order to preserve it. From the authorities, it is settled that the belief of the prisoner in such a case would be tested on objective grounds. In other words, the test is an objective one. Several factors would necessarily arise in determining this objective belief. For instance the quality of the force used on the deceased must be the same as that with which the prisoner defends himself. In Regina v. Josiah Onyeamaizu 1958 N.R.N.L.R. 93 at 95 Brown, C. J. put it this way:
“It is not open to an abnormally nervous or excitable person who on being assailed by a comparatively minor assault or an assault of any nature which falls short of that which is described in the section, unreasonably believes that he is in danger of death or grievous harm, such a person may hope for clemency from other quarters, he cannot expect it from the law. It would be surprising and indeed dangerous if it were otherwise. The legal right to kill in self defence cannot be made to depend upon the temperament, nervous, or courageous, robust or weak, phlegmatic or excitability of the individual killer………..The law insists upon one standard; it is the standard of the reasonable man”
In R v McInnes (1971) 3 All E.R. 295 the defence could not avail a prisoner who killed an unarmed person by stabbing him with a dagger. The prisoner’s defence lay only in these words –
“One of them jumped on my back, someone gave me a knife and I let him have it. We all scampering”
Incidentally the McInnes case is not dissimilar to the present appeal. There the court was dealing with leather-coated, dagger-wielding ‘skinheads’ and ‘greasers’. Here the appellant, admits belonging to the banned ‘Pirates Confraternity’.
This is perhaps an appropriate stage to deal with the issue of excessive force on the basis of which the trial court rejected the defence of, self defence. It was there contended that as against the minor stab wounds the appellant received on his leg and shoulder he dealt the deceased 5 serious stab wounds from which he died. Excessive force has been described as force which is more than a reasonable man would consider necessary. To my mind, the degree of force used is only relevant while one is considering the circumstances of the encounter so as to determine whether there were reasonable grounds for the prisoner’s belief that his life is in danger. Once it is agreed that there were such grounds, the amount of force used by the prisoner to preserve his own life becomes immaterial. In a fight to the death, it is only to be expected that once the prisoner believes on reasonable grounds that his life is in danger he would go all out to preserve his life, and that may entail making sure that the deceased is dead beyond any question. Lord Justice Edmund Davies dealing on excessive force, in the McInnes case quoted with approval a passage in the judgment of Lord Morris of Boothy-Gest in Palmer v Reginam (1971) 1 All E. R. 1077 P.c. where he said:
“There are no prescribed words which must be employed in or adopted in a summing up. All that is needed is a clear exposition in relation to the particular facts of the case of conception of necessary self defence. If there has been no attack then clearly there will have been no need for defence. If there had been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action”. (Italics mine)
Section 224 of the Criminal Code of Western Nigeria stipulates that the person using force declines further conflict or retreats as far as is possible.
Again if I may refer to McInnes, which I think espouses principles of law similar to ours on this issue,
“it is not as we understand it the law that a person threatened must take to his heels and run in the dramatic way suggested by counsel for the appellant but what is necessary is that he should demonstrate by his action that he should demonstrate by his action that he does not want to fight. He must demonstrate that he is prepared to temporaries and disengage and perhaps to make some physical withdrawal” at p.300
The appellant certainly did not retreat in the literal sense. From his testimony he backed away and fell. He also temporised. When he first struck the deceased it was on the left shoulder in an attempt to make him drop his knife. Based on the principles of law discussed above, I am of the view that the evidence led by the appellant which I have set down at various stages in this judgment put him squarely within the provisions of Section 224 of the Criminal Code of Western Nigeria. It seems to me that there were reasonable grounds for him to believe that his life was in danger. The deceased armed with a knife lunged at him three times, and it was only on the third occasion that he drew his own knife. Furthermore, having put up the defence it was not for the appellant to establish it. It is settled law that in cases in which the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never on the accused to establish this defence any more than it is for him to establish provocation or any other defence other than insanity. See Chan Kau Alias Kai and The Queen (1955) 1 A.C. 206; R v Lobel (1957) 1 Q.B. 547 or 19571 All. E.R. 734. The prosecution did not discharge that onus in this case. Therefore, in my view both the trial court and the Court of Appeal erred in not allowing the appellant avail himself of a defence which on the evidence and law was clearly available to him.
Before concluding this judgment, there are two matters which have caused me concern in this case. The first is the slipshod manner in which this case was investigated and evidence presented to the trial court. Investigators, prosecutors and courts ought constantly to bear in mind the words of ANIAGOLU, 1.S. C. in Nwafor Okegbu v The State (1979) 11 S.C. 1 at p.68 to the effect that justice is not only for the accused but also for the deceased who from the cold lonely depths of his grave calls out for justice. We are faced here with the despatch to a premature death, albeit in lawfully excusable circumstances, of a young undergraduate. Such was the paucity of evidence that all the court had was the story of the appellant. There is nothing to indicate the state of the deceased’s health at the time he arrived at the hospital and was admitted. Even Ogundipe who was alleged to have given a lift to the two combatants was not called. The second matter, and this possibly explains the first one raised, is the obvious tendency of the University authorities to wish to settle matters of this nature involving serious crimes. This must be deprecated. That the appellant expected such settlement is obvious from the statements he made to the University authorities and to the Police. I have completely ignored those statements in this judgment as they were clearly induced by that hope by the appellant that this case would go the way of other earlier ones.
Nevertheless, from all I have discussed in this judgment, this appeal must succeed. It does succeed and it is allowed. I hereby set aside the judgments of the High Court, Ile Ife dated 22nd August, 1983 convicting the appellant of manslaughter and sentencing him to 5 years imprisonment and the judgment of the Court of Appeal dated 20th June, 1984 affirming that conviction and sentence. In their place, I return a verdict of not guilty of murder. The appellant is discharged and acquitted.
K. ESO, J.S.C.: I had the advantage of a preview of the judgment of my learned brother Nnamani J.S.C. and I am in full agreement with him and for the reasons given in the judgment that the appeal be allowed.
It is a most unfortunate incident involving the life of a University student but the law must take its course. It is obvious from the case and as my learned brother has stated in the judgment he had just read that the only evidence that dealt with the real core of the case was the evidence of the appellant himself. The only other eye witness alive would appear to have chosen not to be forthcoming or helpful in his evidence.
That being the case, the learned trial judge had only the Hobson’s choice – to reject the evidence of the appellant, in which case there would be no other evidence in regard to the incident and he would have been obliged to discharge the appellant or to accept his evidence as the true account of the incident and be freed as he was left with only the defence of the appellant and that was self defence, For, as the learned trial judge himself directed, and rightly, in my view –
“the most important point to decide here is what really happened immediately before the knife duel between the accused and the deceased.”
This would be the only pointer to the action of the appellant and the attitude of the court towards such action. In the State v Oka (1975)9 – 11 SC 17, this Court stressed the importance of the acceptance by a trial court of the uncontradicted evidence of an accused person. That indeed stands to reason except it could be shown either by cross examination or other evidence that the story could not be true in which case it has ceased to exist in the realm of uncontradicted evidence. There we would have the contradictions.
And so, what happened after the verbal altercation between the appellant and the deceased was in the narration of the appellant, which my learned brother has set out in detail, and which put in summary, is that the deceased came at the appellant three times – knife drawn and though the appellant tried to dislocate his once, and doged him on a second occasion, he came at him a third time! It was after the third attack that the appellant drew out his own knife. He said what followed was a confused state but what followed was eloquently stated by the doctor which was to the effect that the deceased had “five serious stab wounds mostly on his back which caused his death.”
And so the position is clear. After those three unrelenting attacks by the deceased, the appellant, judging from the nature of his own knife attack on the deceased had decided to deal at least grievous harm on the deceased which might cause death and which indeed caused death, just for the preservation of his own life from the relentless attack.
These are the facts which must be related to the law. And the provision is in s.224 of the Criminal Code of Western Nigeria which says –
“224. When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm or to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.”
There is no doubt from the evidence before the court that the appellant must on objective reasoning come to a conclusion that his own life was in danger, indeed, serious danger of death from a knife attacker. That he killed to preserve that life in my view is excusable under the provision of section 224 of the Criminal Code. I would go further and say that if at the stage he objectively formed that opinion he had drawn a gun and shot dead the deceased instead of the savage knife attack he dealt on him, his action would still have been excusable for the assault on him by the deceased was with such violence as to cause him, objectively, reasonable apprehension of death or at least grievous harm. He had in my view been induced to believe of the necessity to do something positive to preserve his own life and that positive action was to have killed the deceased see R. v. Igwe 4 W.A.C.A. The learned Justices of the Court of Appeal who in a majority judgment affirmed the judgment of the trial Court were in serious error and never directed themselves first, as the learned trial Judge never did, to the real issue therein, that is, self defence. They were more interested in provocation which did not arise from the facts of the case before them. I will without hesitation prefer the minority judgment of Ogundare, J.C.A.
The appeal is allowed. The judgment of the Court of Appeal is hereby set aside. So also is the judgment of the High Court of Oyo State Apara J. sitting in IIe-Ife. A verdict of not guilty is recorded in place thereof. The appellant is discharged and acquitted and if in custody shall be released forthwith and this shall be the order of this Court.
D. O. COKER, J.S.C.: I have, after considerable anxiety, agreed that this appeal should be allowed and the conviction of the Appellant for manslaughter and the sentence imposed on him be quashed and a verdict of not guilty of murder returned. The consequential sentence is therefore set aside and an order of discharged and acquitted is hereby substituted.
I am in entire agreement with the statement of the facts and of the law on self defence as discussed in the lead judgment of my learned brother, Nnamani, J.S.C. I also share his view that the case was badly investigated, the presentation and conduct of the case at the trial was half hearted and to say the least, inept. Some, and in fact, the vital witnesses called by the prosecution were evasive in their evidence and were not forthcoming. Learned State Counsel who represented the State failed to make the utmost use of the available materials at his disposal for effective cross-examination of the accused. I particularly have in mind, the various statements made by him, which could have been effectively used to discredit his so called “uncontradicted evidence”. The medical evidence revealed six brutal wounds, five of which were at the back of the deceased. The alleged two wounds of the accused were relatively minor and inconsequential. I myself doubt if he suffered any injury during the brawl.
The 1st P. W. who heard their argument and witnessed the fight did not see the accused tripped or that he made any attempt to retreat or withdraw from the fight. Rather, in his attempt to separate the two, the witness was inflicted with a deep cut at his left palm which, from all the circumstances, the witness believed was inflicted by the accused. It was the duty of learned trial judge to have evaluated the evidence including the statements of the accused and all the circumstances of the case and come to a clear decision whether he believed the story of the accused or if it cast any reasonable doubt on the case of the prosecution. The statements of the accused and the evidence of the 1st P. W. should have been properly evaluated. He should have decided whether he found that the accused tripped and fell or attempted to retreat or withdraw from the fight before he attacked the deceased and inflicted the wounds. His earliest statement under caution to the police, Exhibit H, was made on the 15th of March, 1982, which was subsequent to his earlier statement to the University Security men which was obtained under circumstances which made it inadmissible and therefore not produced in evidence. In Exhibit H, the accused did not say that he suffered any injury or received treatment, even though he confessed that both the deceased and the 1st P.W. had serious wounds and were treated in hospitals. I have read his statements to the police. They were all tendered and admitted in evidence without objection. Nowhere did he disclose the name of the doctor who treated him. If in fact he was treated, he never produced evidence in proof, say the patient’s reference card to which the hospitals record could be traced. There was no evidence that the police carried out any investigation, whether or not he was in fact treated. Then, at what stage of the investigation did he disclose to the police the name of the Filipino doctor who treated him The letter, Exhibit K, from the Directorate of Clinical Service of the University did not state when Dr. Felife P. Almachar left the country. The police ought to have investigated whether the said doctor was on duty on the 15-16/3/83 and whether from the hospital records, the accused received any treatment and for what.
In his statement, exhibit B, made on the 7/6/82, he disclosed that his mother was a staff of the University and he was promised protection if he cooperated with the authorities by furnishing information concerning membership of the “Pirates Confraternity” of which he was a member. Rightly, the statement was inadmissible and was never tendered in evidence. He was also a member of the National Association of Seadogs. He had learnt some Karate for self defence. He stated that the University Authorities had given similar protection in the past to some named students, who were children of members of Staff of the University and who were involved in similar criminal cases.
The learned trial judge, apart from failure to make any specific findings of fact, made no comment on the demeanor or credibility of the witnesses or of the accused. The appellant in his said statement, Exhibit D, contrary to his testimony on oath, disclosed that the knife used on Steve Afere was bought by me from London following an incidence of attack on a friend of mine, a black, by a group of whites in a tube station one late night. I bought the knife for defence should in case of any similar attack on me and I had always been carrying the knife around with me since then, strapped to my inner leg, and it was strapped to my inner right leg until Afere’s uncontrollable knife attack on me.” He did not say that after the Arogundade’s incident, it was usual for students to arm themselves with knives and that P.W.1 himself had a knife on him that evening. It was in his statement, Exhibit C, made on 17/4/82, more than a month after the incident, that he stated “I took my treatment at about 00.00 Hqs of the 16/3/82. Due to the fact that Steve Afere’s condition was more grave that (sic) my own. Steve Afere was given full attention while I didn’t think much about my injury.” Italics mine. He did not give the name of the doctor who treated him. 1st P. W. was never cross-examined nor was it suggested to him that he himself was armed with a knife on that day or, that after Arogundade’s incident, it was usual for students to carry knives about at the time.
In Exhibit A, his statement made on the same day as Exhibit C. i.e. 17/4/82, he stated:-
“My wounds sustained during the fight had dried up (not that they had been treated or that the wounds had healed) before my case got to the C.I.D. Ibadan. It was treated at the Ife University Teaching Hospital on 15th March, 1982 night ” (words in italics mine).
Exhibit A, is revealing. He gave his own version of the incident as follows:-
“A fight later broke out between Afere and lover my passing an impleasant remark about his girlfriend. He hit me first, slapping me yet he was a lot smaller than me, I was going to beat him up, when he drew a knife at me. I tried defending myself, since I am a bit good at Karate by giving him a kick when I felt a sharp jab on my right foot. I moved back, fell and got another cut from his knife, we both struggled with the knife, I did not succeed in getting it from him after rolling some number of times. On getting up, I drew a knife too and hit him on the shoulder, that is all can remember I did to him, before we started walking towards Nigeram Supermarket on the same road for help to the hospital.”
Later on, he stated:-
“After I was promised by Mr. Nwahuzor (Acting Security Officer at the time) and the Director of Students’ Affairs that my revealing something about the pirate’s confraternity will help me and that they had already felt that the incident had something to do with the pirate’s confraternity and that my mother being a staff and working with the Director of Students Affairs, (DSA), they will treat the case internally meaning within the University as they said it, that it will not get to the police. I was happy to hear this and decided to go all their theory, not knowing it will put them in so much trouble. The names I gave in my statement to the University authorities relating to the Pirates Club were mentioned to me by the Director of Students’ Affairs, Mr. Adegbire, but Rotimi I formed myself.” (The italics are mine)
In his own testimony in Court, the appellant said:-
“As we went along, I passed a remark on the deceased’s girl friend. He was very serious over the girl and I said the girl was not worth it. He took offence and flew into a rage and he slapped me. I slapped him back and a fight ensued. Suddenly he drew ou1a knife as he had a small stature. If I ran he would easily catch me up as he was a good sprinter. So I kicked him as he tried to stab me. He fell down. Then I noted that he had stabbed () me on the right leg with which I had kicked him. As a bent down to check the wound, he came at me again with a knife. As J tried to back away, I tripped and fell down. He fell on me and his knife grazed my shoulder. It bled. I managed to get up before him. As he came at me again I brought out my own knife. As he held his knife with his left hand, I struck him on the left shoulder with my knife so he could drop the knife. From that stage I can’t remember what happened again as the situation was confused. When the situation subsided and we were both standing, I threw my knife and his own away into the bush. We both decided to go into the hospital for treatment. We then both planned to tell the hospital authorities that we were attacked by robbers.”
Dr Odesanmi who performed the post-mortem examination testified how savage and grievous were the Slab wounds inflicted on the deceased by the accused. He stated inter alia:-
“There were multiple stab wounds on the body. One of 5cms long was at the back of the left shoulder. One was 1.5cms long and at the back of the left side of the chest. One was 4cms long on the back of the left chest – it was 9cms below at the back of the left side of the chest – about 17cms below the top of the shoulder. One was 3cms long, transversely across the mid-line of the spine – in the space between the 11th and 12th thoracis vertebra. The 6th wound was about 4cm long, at the palm of the left hand. There was no other external) marks of violence.”
Could these wounds have been inflicted on the deceased by the accused in self defence A prosecution witness, Jacob Awodiran, a police inspector said under cross-examination:-
“I saw an injury on the right leg of the accused at the time he came to lodge a complaint at our station. I cannot remember seeing an injury on his shoulder.”
He did not say the nature of the injury. After the accused had made his statement exhibit E on the 16/3/82 he did not say whether he investigated whether or not the accused received treatment and for what The witness further testified that
“They all went to the Seventh Day Adventist Hospital in Ile Ife and saw the 1st P.W. there with his hand heavily bandaged. The doctor said he was weak, we did not interview him. We then went to the State Hospital Mortuary where the accused showed us the corpse of the deceased as one of the people with him when the six men attacked.”
The law, as I have earlier observed has been adequately considered in the lead judgment; I agree that self defence could reasonably be raised on the basis of what the trial judge said that the evidence of the accused stood uncontradicted. It was the duty of the trial judge to decide unequivocally the facts on the evidence and, apply the law. If on his findings, the defence could reasonably be raised then the accused was entitled to an acquittal as the prosecution has failed to prove beyond doubt that what the accused did could not have been in self defence.
I agree with my learned brother, that on the evidence before the trial court and the circumstances of the case, the defence of provocation could not reasonably have availed the accused.
In conclusion, since the case for the accused was that he acted in purported self defence, but what in effect the trial judge found that he acted far in excess of what was reasonably necessary, it was open to him to come to the conclusion whether or not the wounds which the appellant inflicted on the deceased could have been in self defence. On the facts of the case the verdict of manslaughter could not be justified in the absence of a clear finding of provocation.
In the circumstances, I am unable to say in the circumstances if the trial judge had properly directed himself on the right question he would have come to the same conclusion that the appellant was not guilty of murder. However, the verdict of manslaughter could not be sustained in the absence of a clear finding of provocation as defined in law.
I therefore agree with the lead judgment that this appeal should be allowed. The conviction for manslaughter and the sentence thereof are quashed, and a verdict of not guilty of murder substituted. The appellant is discharged and acquitted.
A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother A. Nnamani, J.S.C. in this appeal. I agree largely with the reasoning and entirely with the conclusion that the appeal is allowed. I however wish to add in amplification of the reasoning on the defence of self-defence urged on the Court at the trial, in the Court of Appeal and in this Court. It is on the proper consideration of this defence that the appeal before us rests.
My learned brother Nnamani, J.S.C. has so exhaustively dealt with the facts of this appeal, and the other aspects, that I intend to confine this judgment to the issue of self-defence. I will however restate so much of the facts as are relevant and necessary, for the purpose. Adeyinka Albert Laoye a student of the University of Ife, Ile-Ife was on the 15th June, 1983 charged with the murder on the 15th March, 1982 of his friend Stephen Afere also of the same institution. He pleaded not guilty to the charge. However after the conclusion of the case, and appellant having given evidence, Apara J on the 22nd August, 1983 found him not guilty of murder, but guilty of manslaughter.
It is significant to mention that apart from the appellant, there was no eye-witness account of the incident which resulted in the death of Stephen Afere. The evidence of Akintokunde Akindohunsi the P.W.1, who accompanied appellant and the deceased on the journey back to the campus, was that he was ahead of the pair by some 4 metres. He was attracted by the argument he overheard taking place about the deceased’s girl friend. He walked back to them and appealed to them to be calm but was stabbed in the scuffle. He was not actually sure who stabbed him whether it was the appellant or the deceased. He left them and ran towards the University junction where he got someone to take him in a car to the University Health Centre. He said that whilst he was running away he heard shouts as of that of the deceased from the direction of the appellant and the deceased, which he thought was that of someone in pain. He was not sure whether the deceased also had a knife. P.W.1 appeared to be positive that appellant had a knife. This is clear from his answer on cross-examination –
“By the time I got to the two of them the scuffle had started, and each one was defending himself in detail. I therefore could not know if the deceased also had a knife with which he was defending himself.”
The other evidence was that of the appellant in Court, which explained the incident in considerable detail.
‘The deceased Stephen Afere was my friend. At about 6 p.m. on 15/3/83 the deceased came to my house on the campus to borrow a book from me. I had lent the book to Alaba another student who lived in the town. So, I took the deceased to Alaba’s house to get the book from Alaba. When we got to Alaba’s he was out, but met the 1st p.w. We looked for the book we came for but to no avail. We then headed back for the campus in company of the 1st P.W. We slopped at the Beacon restaurant for minerals. As we could not get transport, we started to trek towards our destination. As we went along, I passed a remark on the deceased’s girl friend. He was very serious over the girl and I said the girl was not worth it. He took offence and flew into a rage and he slapped me. I slapped him back and a fight ensued. Suddenly he drew out a knife as he had a small stature. If I ran he would easily catch me up as he was a good sprinter. So I kicked him as he tried to stab me. He fell down. Then I noted that he had stabbed me on the right leg with which I kicked him. As I bent down to check the wound, he came at me again with a knife. As I tried to back away, I tripped and fell down. He fail on me and his knife grazed my shoulder. It bled. I managed to get up before him. As he came at me again I brought out my own knife. As he held his knife with his left hand, I struck him on the left shoulder with my knife so he could drop the knife. From that stage I can’t remember what happened again as the situation was confused. When the situation subsided and we were both standing, I threw my knife and his own away into the bush. We both decided to go into the hospital for treatment. We then both planned to tell the Hospital authorities that we were attacked by robbers. When we both got to Ile-Ife-Ibadan-Ondo junction we stopped for a lift. We eventually got a lift from a friend who took us to the hospital. There the deceased told them we were attacked by robbers. He sat on a bench there and Babatunde Ogunde and I went to the House Officers quarters to find some friends for help. We were told they were on strike. We returned to wait in the hospital. Eventually the deceased was admitted. I and some friends went to look for blood for transfusion for the deceased. Before we returned, he was dead. In physical combat, I could beat the deceased. If the deceased had not brought out a knife, I wouldn’t have brought out mine. I was also treated for my injuries in the same hospital by a doctor Felipe Almachar. It was when we were waiting for a lift that I knew Afere’s wounds were serious. I was only defending myself during this incident.”
Under cross-examination, appellant said,
“At that time, most members of the students at Unife carried knives about because it was around that time Arogundade was beheaded in Ife by unknown people. Arogundade was a student of Unife. Even the 1st P.W. had a knife with him.”
It is inescapable from the evidence of the appellant which the learned trial judge accepted as uncontradicted that he was relying on the defence of self-defence.
Unfortunately without making any specific finding, the learned trial judge went on to say (p.16 lines 19 – 26)-
“The accused insulted the girl friend of the deceased. The deceased took offence and slapped the accused. If the accused had been reasonable, he should have apologised to the deceased for insulting his girl friend. Perhaps that would have been the end of the matter. The accused did not do this but retaliated with his own slap. Even at this stage, the matter had not yet got out of hand.
Then the deceased drew out a knife. The accused kicked the deceased and sustained an injury on his leg from the knife of the deceased. Then the accused brought out his own knife.”
In dealing with the evidence as stated, it was his duty to evaluate the evidence and make specific findings of facts which would have enabled him to apply the relevant law. Rather, without doing that he went on to conclude, that the defence of the appellant was excessive – as follows –
“What happened from this stage on is of paramount importance. The accused admitted in court that he had a bigger stature physically than the deceased. The accused also admitted in court that he knew some karate. With this combination, ifhe brought out his own knife, one could understand the situation if the accused had just stabbed the deceased’s shoulder once only and combined it with karate knowledge to disarm the deceased. The accused did not do this.”
(see p.16, lines 27-31, to p. 17 lines 1-1).
He actually so stated, after referring to the medical evidence that the deceased had five serious stab wounds which caused his death. He said,
As it was only the accused and the deceased who fought with knives, the only irresistible conclusion I have drawn is that it was the accused who inflicted the five serious wounds on the deceased, and it was these wounds that killed the deceased. My conclusion here is that the defence offered by the accused was far in excess of the attack offered by the deceased”. (p.17 lins 5-10).
It could be reasonably inferred from the judgment of the learned trial judge that he accepted that the defence of self-defence was available to the appellant. His conclusion seems to me, to be that the force used in the defence was in the circumstance excessive. It is well settled that having found that the evidence of appellant as to the incident was uncontradicted, the conclusion that the facts have been established becomes not only irresistible but inevitable.
In the Court of Appeal, the lead judgment of Kutigi JCA, with which Babalakin JCA. agreed, dismissing the appeal, stated, at p.52
“The only question left to be considered and which the trial judge considered is whether having regard to the evidence and circumstances of the case as a whole any defence was opened to the appellant. The appellant in his own evidence which I almost completely reproduced above concluded his evidence with the sentence”…I was only defending myself during this incident”. That ‘sentence’ alone cannot and does not establish the defence of self defence as Chief Fadagha would want this Court to believe. The whole evidence before the court ought to be considered to see whether self-defence or any defence at all is open to the accused.”
With due respect to the majority learned justices of the Court of Appeal the appellant did not merely rely on the statement that he was only defending himself. His defence was in the uncontradicted evidence before the Court and all other evidence relevant thereto in the case. I find it almost impossible to appreciate the validity of the view expressed by Kutigi J.CA. at p.53
“With all due respect to the learned counsel for the appellant I am unable to say that appellant specifically raised only the defence of self-defence in his defence. I am also unable to say that that defence was established before the trial court having regard to the evidence before it. I have in addition not been able to see from the record where the trial judge found or accepted that that defence was established.”
It is now well settled that where the only evidence before the Court is that of the accused which remains uncontradicted throughout the trial, if believed the court has no option but to rely on such evidence. See R. v. Nwibo (1950)19 NLR.124 R v. Igwe (1938) 4 WACA.118. In Nomeh Okoh v. The State (1975)9-11 S.C. 17, the case for the prosecution was based on the statement of appellant to the Police. It was on this that the prosecution relied as proof of the cause of injury on the stomach of the deceased. There was no other evidence of how the injury was inflicted to support the ingredient of unlawful killing. The evidence relied upon was that appellant whilst he was being chased waived his matched behind in order to ward off the attack of the deceased who himself was chasing the appellant. The appellant cut the deceased in his stomach. The conviction for murder was set aside on the ground of a successful defence of self-defence.
In addition to what I have already said, I agree entirely with the criticism of the learned trial judge by Ogundare J.C.A. that the defence of appellant was not in fact considered. It was on record that the relevant provisions of the Criminal Code were cited to him by Counsel for the appellant. Regrettably he did not refer to these sections in his judgment. Neither did he comment on the credibility vel non of the evidence of the appellant.
As I have already indicated in this judgment, appellant has always relied on the defence of self-defence. As in the Court of Appeal, Grounds 1, 2 of the original grounds of appeal, and ground I of the additional grounds of appeal are all on the issue of self-defence. It is sufficient to reproduce only ground 1 of the additional grounds of appeal which is as follows –
1. The lower court erred in Law in dismissing the appellant’s appeal before it on the ground that the appellant did not establish the defence of self-defence before the trial court.
PARTICULARS OF ERROR
(a) Reliance on first prosecution’s witness evidence which by and large is not reliable and which the trial judge did not believe, even then the same first prosecution witness admitted that both the appellant and the deceased are defending themselves with an object he could now know.
(b) Failure to consider the whole evidence before the trial judge which should not have led the lower court from reaching the conclusion that there was no sufficient evidence to support the plea of ‘self-defence’ as raised by the accused when the evidence of the 4th P.W.; 8th P.W. – Jacob Awodiran; the Prisoners Statement to Police and Prisoners evidence on oath are very relevant.
(c) The trial judge finds as follows:-
“Even at that stage the matter had not yet got out of hand. Then the deceased drew out a knife the accused kicked the deceased and sustained an injury on his leg from the knife of the deceased. Then the accused brought out his own knife “this findings amounts to acceptance of the plea of ‘self-defense’ therefore wrong for the appellate court to hold that there is no where the trial court accepted the defence of ‘self defence'” .
(d) That the trial judge accepted that both the prisoners and the deceased were fighting with knives but the trial judges judgment in convicting the appellant was based on the fact that the defence offered by the prisoner was far in excess of the attack offered by the deceased which is not the same thing as rejecting the Prisoner’s plea of ‘self-defence’ or based its judgment on provocation.
(e) Failure to consider the trial court’s findings that the evidence of the Prisoner/Appellant based on ‘self-defence’ stands uncontradicted which in its wider interpretation mean the Prosecution has not dislodged the Prisoner’s defence of ‘self-defence’ this amounts to acceptance of the prisoners defence of self-defence.”
Counsel to the appellant has in his brief of argument which he amplified before us submitted that the defence put forward by the appellant in his uncontradicted evidence can only amount to self-defence within the provisions of section 224 of the Criminal Code. He cited and relied on State v. Oka (1975)9-11 S.C. 17 R. v. Knock (1877)14 Cox C.C.1. Counsel urged us to accept the dissenting judgment in the court of Appeal of Ogundare J.C.A., Counsel for the respondent supported the majority judgment of the Court of Appeal. Counsel argued that the inference from the judgment of the learned trial judge was that the defence of self-defence was not established on the evidence. It was submitted that appellant neither specifically raised the defence of self-defence, nor was such a defence established on the evidence before the trial court. The learned trial judge neither found nor accepted that the defence was established. Counsel distinguished R v. Knock (supra) from the instant case, on the ground that there was a scuffle in this case. This was a case of two people fighting and not where a person was defending himself from attack by another. Counsel accepted the proposition that where evidence suggests a line of defence, it is the duty of the trial court to consider such defence whether expressly raised by counsel, but submits that the court is not bound to speculate on a possible defence available to the accused Takida v. The State (1969) 1 All ALR.270.
It seems to me that there is some confusion in the approach of the Court of Appeal on the scope of the defence of self-defence in the Criminal Code and the duty of the trial judge faced with evidence raising the defence. The defence relied upon sections 223 and 224 of the Criminal Code, which are as follows –
“223. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault;
Provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm.
If the nature of the assault is such to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.
“224 When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.
This protection does not extend to a case in which the person using force, which causes death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person; not to a case in which the person using force which causes grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose not, in either case, unless, before such necessity arose, the person using such force declined further conflict and quitted it or retreated from it as far as was practicable.”
It is important to appreciate the rule that our Criminal Code is exhaustive as to the principles of liability, defences, and the offences created therein. Hence in construing its provisions it is necessary to consider the words used with the predilection that it was intended to contain all the law with respect to the subject matter and as a departure from the Common Law – See Odu v. The State (1965) NMLR. at p. 131.
Accordingly, a successfully defence of self-defence in section 223 is available to exclude criminal responsibility from causing harm in resisting unlawful assault of such a manner as is not likely to cause death or grievous harm. Where however the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, such a person is entitled to defend himself from such assault even though he causes death in so doing. – S.223. The defence is available even where the person who causes the death has provoked the assault, where the person assaulted reacts with such violence as to raise in him the apprehension of death or of grievous bodily harm. S.224
Where however the initial assault was with the intention to kill or cause grievous bodily harm, the defence of self-defence is not available, unless he had declined further conflict or retreated from the area of conflict. See Usman Yangiya v. Katsina N.A. (1959) N.N.L.R. 117. This is the general defence of self-defence or private defence. Where the defence is relied upon in homicide cases it has always been necessary to show that the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous harm to the accused. It is also necessary to show that the accused in fact apprehended death or grievous harm. This was the situation in R v. Igwe (supra) appellant, who was unarmed disarmed the deceased and killed him with his (deceased) own knife. The Court held that appellant was in a life and death fight with deceased. The conviction for murder was quashed. In R. v. Nwibo (supra) appellant was challenged by deceased to a fight and refused. Deceased then struck appellant with his sheathed matchet. Before deceased could unsheath his matchet, appellant attacked him from behind and struck him deadly blows. He died. It was held that the defence of self-defence was available to appellant. He was acquitted of the conviction for murder. In each of these cases, the test of the reasonableness of the belief of the danger would seem to have been regarded as objective. It is clear from subsequent cases that several factors are taken into consideration. For instance, the disparity in the strength of the parties and also the weapon used as in R v. Jinabu (1961) All N.L.R. (Part 4) p.627, or the relative conditions of the parties after the conflict as was in Okan Bassey v. The Queen (1963)1 All NLR. 280, where appellant emerged from the conflict unmarked. The defence was held not to be available to an abnormally excitable person as was stated in R v. Onyeamaizu (1958) NRNLR.93. In Queen v. Jinabu (1961) All NLR (Part 4) p.627, the plea of the appellant was self defence and provocation. The facts relied upon by the appellant were that the deceased, a 14 year old girl, who was his wife, held on to his private parts to prevent him having sexual intercourse with her. He then beat her with what he thought was a stick which subsequently turned out to be a knife.
The learned trial judge rejected his defence of self-defence on the ground of the age and possible weak physique of the deceased. Provocation was not considered. The Supreme Court set aside the conviction of murder and substituted a conviction for manslaughter on the ground that on the findings of the trial judge a defence of provocation was not sufficiently excluded. It would seem clear that the court considered only whether the nature of the assault was sufficient to constitute provocation to reduce the intentional killing from murder to manslaughter, I think that on the facts as found, the defence of self-defence was open to the appellant. The question whether a reasonable person would apprehend death or grievous bodily harm for the assault on the appellant cannot be disputed. The question therefore whether appellant believed on reasonable grounds that by the assault he was in imminent danger of death or serious injury, to entitle him to resort to the degree of force to repel the assault was not considered by the Federal Supreme Court.
In Okon Bassey v. The Queen (1963)1 All NLR.280, appellant was charged for murder. He relied on his defence on self-defence and provocation. Both were rejected, and he was convicted. The facts were that appellant was attacked in a room by two women and a man, all unarmed. Appellant had a knife which he used on the man who released his grip and ran away. He also struck a blow on one of the women who also released her hold on him. Appellant struck more blows on this elderly woman when she was trying to escape. Appellant received no injuries.
On appeal, the Federal Supreme Court referred to section 286 of the Criminal Code in pari materia with S.223, and on the facts came to the conclusion that since appellant was unable to show any injuries on his person and his assailants were unarmed the assualt on him was not such as to cause reasonable apprehension of death or grievous harm. Consequently the force used by him was excessive in all these circumstances. The learned trial judge was therefore right in rejecting the defence of self-defence.
It seems to me somewhat difficult to appreciate the reasoning that it is not reasonable for a person attacked by one man and two women, howbeit unarmed, and already thrown on to the ground, to apprehend death or grievous harm by the attack and that any force employed to repel such attack could be excessive. It is important to consider that the apprehension of death or grievous bodily harm is by the person attacked and whose reaction resulted in the death of the attacker. In my opinion the apprehension of danger is both that of a reasonable man in the position of the appellant which is an objective standard, and also of the appellant whose reaction is in issue. The apprehension of appellant is as all requirements of mental element in serious crime such as murder, a subjective standard. The words of Sections 223 and 224 are clear and unequivocal. That where the defence is established the person is not criminal responsible for the offence charged. Thus the law will excuse a killing done in these circumstances where a person believed that from the nature of the attack on him, his life was in danger and that it was necessary to preserve his life to kill.
The crux of the trial judge’s reason for rejecting the defence of self defence in this appeal, was that “the defence offered by the accused was far in excess of the attack offered by the deceased”. The defence of the appellant has already been stated. The learned trial judge held and the Court of Appeal affirmed that the five serious stab wounds which appellant inflicted on the deceased were far in excess of the injuries sustained by the appellant. I think the words sections 223 and 224 which have been quoted are very clear. The appellant is not criminally responsible for the death of a person who he kills in the reasonable belief that an assault on him by that person endangers his life or exposes him to grievous harm. It is not a question of counting injuries. Excessive force is such a degree of force which a reasonable man would not consider necessary in the circumstances. Thus there is a distinction between what force a reasonable man would consider necessary in the circumstances, and the force used and considered necessary by the appellant for his safety. It seems clear to me that sections 223 and 224 have no limitation as to the degree of force which could be resorted to in the preservation of a person from death or grievous harm. The cases of R. v. Igwe (supra), R v. Nwibo (supra) clearly support this view. Accordingly the question whether the circumstances were such that appellant could be said to be in danger of death or grievous harm is undoubtedly determined on the standard of the reasonable man and is objective. But the question whether appellant in fact apprehended death or grievous harm from the situation facing him depends entirely on the appellant and is subjective. To put it more tersely, the existence of the danger should be subjected to the test of the reasonable man, and the magnitude of the -danger to the test of what the accused actually apprehended. The latter is invariably the test of criminal responsibility and is what is in issue in self-defence. The question whether the defence is excessive can only be determined by the mental attitude of the person confronted with the danger – see R v. Gladstone Williams (1983)78 Cr. App R 176, R v. Colin Chisom (1963)47 Cr. App.R.130, R v. Weston (1879) 14 Cox C.C. 346.
“In Brown v. United States (1921)256 U.S.335, Cardozo J said,
“… detached reflection cannot be demanded in the presence of an uplifted knife”.
Also in Palmer v. Reginam (1971) 55 Cr.App.R. at p.242 Lord Morris of Borth -Gest said,
“…if there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.”
See also Rex v. Igwe (1938) 4 WACA at p.118. “That he was engaged in a life and death fight with the deceased, if he could not kill the deceased he would certainly be killed by the deceased.” These are the considerations for determining whether the defence is excessive. The requirement of retreating from the conflict in section 224 arises on where the person was the initial aggressor and then ceases the attack. As was pointed out in R v. Julien (1969) 53 Cr.App R at p.411, the important thing is that “he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to compromise and disengage and perhaps to make some physical withdrawal; and to the extent that that is necessary as a feature of the justification of self-defence is true, in our opinion, whether the charge is a homicide charge or something less serious”. See also R. v. McInnes (1971) 55 Cr. App. R. 551 R. v. Palmer (supra).
The common law rule of retreating is not part of the provisions of sections 223 and 224 except in the circumstances stated in section 224. The facts of this case do not show that appellant was the aggressor. The evidence sufficiently demonstrate as was accepted by the courts below, that the deceased was indeed the aggressor. It was the deceased who first slapped the appellant, although appellant passed uncomplimentary remark about his girl friend. It was the deceased who first drew his knife against the appellant. In the circumstances of the facts of the case there was sufficient evidence of reasonable grounds on the part of appellant to apprehend danger of death or grievous harm and reasonable grounds upon which he should wish to repel that danger by commensurate force to the point of killing the deceased. -see R v. Igwe (supra); R v. Nwibo (supra). Appellant’s defence falls squarely within S.224 of the Criminal Code and is accordingly excluded from criminal responsibility.
The learned trial judge and the majority of the Court of Appeal seemed to have confused the effect of the two defences of self-defence and provocation. In his judgment the learned trial judge after stating that “the defence offered was far in excess of the attack offered by the deceased” went on to conclude as follows –
“…I say this because the accused had just one slight wound on his leg to show for the combat. No time intervened between the quarrel and the fight between the two of them. Therefore passions had not cooled off’.
The majority of the Court of Appeal recognised that the word ‘provocation’ was not used, but correctly held that that was what the learned judge had in mind. In that passage the majority of the Court of Appeal then considered and rejected the defence of provocation. In practice, the line between provocation and self-defence is very thin. But there are substantive and significant differences in effect. Whereas provocation merely reduces the offence of murder to manslaughter – see Ss.317, 318 – Criminal Code, and merely is a justification for killing. Chukwu Obaji v. The State (1965) NNILR. 417, Self-defence in sections 223, 224 excludes criminal responsibility entirely wherever it is established and in respect of whatever offence. The facts constituting provocation need not amount to assault likely to result in death or grievous bodily harm whereas, that is the only condition requisite for the defence of self-defence in homicide. It will be correct to state that where the facts established have gone beyond mere provocation based on words or conduct and have threatened the life of or grievous bodily harm to the accused, the proper defence available to the accused is self-defence.
On the facts of this case it cannot be said that the death of the deceased resulted from (a) heat of passion (b)caused by sudden provocation (c) before there was time to cool. There was no doubt anger resulting from insulting remark by the accused and from the slap by the deceased was a provocative incident. There was no evidence that it led to heat of passion and loss self control which resulted in death of the deceased. -See R v. Nwanjoku (1973) 3 WACA.208, R v. Afonja (1955) 15 WACA.26, R v. Green (1955) 15 WACA.73. There was no evidence of provocation. In any event since the overriding issue of self-defence arose from the evidence, the question of provocation was no longer an issue.
Finally, the burden of establishing the guilt of the appellant remained throughout the trial on the prosecution – See R v. Oshinbiyi (1961) 1 All NLR.453. Having led evidence it was not necessary for the defence to do more. There is no doubt that appellant led sufficient evidence of self-defence before the learned trial judge which was not considered by him. The majority of the Court of Appeal was in error in holding that there was no such evidence before the learned trial judge and in dismissing the appeal. I think Ogundare J.C.A. was right. The defence of self-defence available to the appellant was not considered.
From all I have said in this judgment, this appeal must succeed. It is hereby allowed. I hereby set aside the judgment of Apara J of IIe-Ife High Court dated 22nd August, 1983, convicting appellant and sentencing him to 5 years imprisonment. The judgment of the Court of Appeal dated 20th June 1984 affirming the conviction and sentence is also set aside. A verdict of not guilty of murder is entered in their place.
Appellant is accordingly acquitted and discharged.
S. KAWU, J.S.C.: I have had the advantage of reading in draft, the judgment which has just been delivered by my learned brother, Nnamani, J.S.C. I entirely agree with the reasoning and the conclusions therein. It is also my view that on the evidence adduced, the appellant’s defence of self defence should not have been rejected by the trial court. Accordingly, the appeal succeeds and it is hereby allowed. The judgment of the High Court. IIe-Ife, dated and August, 1983, convicting the appellant of manslaughter and sentencing him to five years imprisonment and that of the Court of Appeal dated 20th June, 1984, affirming the conviction and sentence are hereby set aside. Instead, a verdict of not guilty of murder is entered, and the appellant is acquitted and discharged.
Appeal Allowed
Decisions of the Court of Appeal
and High Court Set Aside
Appellant Acquired and Discharged
Appearances
Emeka Nwamkpa For Appellant
AND
Dr. (Mrs.) G.O. Olateru-Olagbegi, D.D.P.P. (Oyo State) For Respondent
