BODUNRIN SENU v. THE STATE (2016)

BODUNRIN SENU v. THE STATE

(2016)LCN/8506(CA)

In The Court of Appeal of Nigeria

On Thursday, the 21st day of April, 2016

CA/I/163C/2014

RATIO

EVIDENCE: BURDEN OF PROOF; ON WHOM LIES THE BURDEN OF PROOF IN CRIMINAL MATTERS
In all criminal matters, the burden is always on the prosecution to proof the guilt of the accused person. It is always the duty of the Prosecution to overcome the evidence of the accused, that he acted in self defence by establishing malice, an intention to fatally injure the deceased. PER MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.
CRIMINAL PROCEDURE: PLEA OF SELF-DEFENCE; WHAT CONSTITUTES SELF-DEFENCE
When self defence is raised, three situations stand out in law, either the Appellant as an accused is justified in acting in self-defence, in which case he is not guilty, or the evidence of self defence is improbable and totally incapable of belief in which case he must be held guilty. In the 3rd scenario, raising self defence could introduce a doubt which again disables the Judge from finding the accused person guilty because he is entitled to be allowed the benefit of any doubt created by his defence…. Where the accused is expected to establish a fact in his defence, the standard is not as high as that of the Prosecution and all reasonable doubts raised must enure to the accused person. (See NAMSOH v. STATE (1993) 6 SCNJ 55; EDET v. STATE (1999) 12 SC (pt.1722.)
I find no justification to depart from this age long principle of justice. PER MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.
CRIMINAL PROCEDURE: PLEA OF SELF-DEFENCE; WHEN WILL THE PLEA OF SELF-DEFENCE AVAIL AN ACCUSED
On the said cases, it is conceded that an accused who was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm is entitled to use and apply such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from danger. Indeed he is so entitled even though such force may cause death or grievous harm. The condition for such response is however subject to whether self-defence was necessary and whether the injury inflicted was proportionate to the threat offered or excessive. Section 286 of the Criminal Code gives a statutory support to the right of accused person to apply force in self-defence.
These two conditions stated in ADEYEYE VS THE STATE are clearly subjective, like the test of what a reasonable man thinks. A man who is on the ground under the weight of his assailant who had threatened his life is certainly not in a position to reason in terms of caution or proportion. His paramount thoughts and strategy would be survival at whatever cost! PER MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.
EVIDENCE: DYING DECLARATION; WHEN IS DYING DECLARATION ADMISSIBLE
BASSA VORGHO VS. THE STATE (1972) NSCC 303 and Section 33(a) now 40 of Evidence Act 2011 is instructive as to what a dying declaration implies –
Section 40 Evidence Act:
“1. A statement made by a person as to the cause of his death, or as to any of the circumstance of the events which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to in danger of approaching death although he may have entertained at the time of making it hope of recovery.
2. A statement referred to in Subsection (1) of this Section shall be admissible whatever may be the nature of the proceeding in which the case of death comes into question.
The above was strengthened in BASSA VORGHO VS THE STATE (supra), Per Elias CJN – PER MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

BODUNRIN SENU Appellant(s)

AND

THE STATE Respondent(s)

MONICA BOLNA?AN DONGBAN-MENSEM, J.C.A.(Delivering the Leading Judgment): This appeal challenges the death sentence pronounced on the Appellant for causing the death of one Wasiu Hunsa in a fight.

The facts of the case before the trial Court are well conveyed in the testimony of the Appellant. Part of the said testimony which was made under oath on the 01/06/2010 is recorded at pages 16-18 of the records transmitted to this Court on the 07/04/2014. The Appellant’s testimony went thus:
?”….On the 6/8/07, I was in my workshop in Ajegunle at about 7.30am. I was cutting clothes. I suddenly saw Wasiu Hunsa, he came on a Motorcycle to my shop. He came to meet me where I was cutting clothes. I greeted him good morning. In answering, he said I should look up and down that that was my last day on earth. He then dipped his hand into his pocket and brought out two rings – one white, one black. He then inserted the rings into his fingers. I stepped back for him and was looking for ways to escape. Wasiu covered the entrance of the shop and prevented me from going out. He then moved close to me and slapped me with the rings and I

fell down. I could not stand up and my tongue came out.
I know the father of Wasiu. He had testified in this case. He is an herbalist. As I fell down, and was still on the floor, the deceased pounced on me again. I struggled to free myself from him but I did not succeed. I had the scissors with me during the struggle. I use the scissors to cut clothes. When I could not free myself from the deceased, the scissors stabbed him. I used the scissors to free myself from the deceased. After that I stood up from the floor. I now say I did not stand up from the floor. I was taken to Celestial Church in Ilase where I was treated. Something was used for me there. Thereafter I don?t know what happened again (At page 17 of the record)

One Dr. M. R. O. Omotayo performed the postmortem examination on the corpse of the deceased but was not called to testify in Court. The case of the Prosecution was stated in this virgin form by one Ahmed Hunsa, the brother of the deceased. The incidence was reported to him by the wife of the Appellant. Ahmed Hunsa is a brother of the deceased. He testified as PW1. He was sworn on the Bible and his testimony is recorded at pages 9 ? 11 of the record. His

account of the incidence is as follows:
“PW1: Sworn on the Bible and states in Yoruba. I am Hunsa Ahmed. I live at Ilase Isale Ode, Ajegunle, Idiroko border side. I am a painter. I know the accused person. I know Wasiu Hunsa. Wasiu Hunsa and the accused person are friends. Wasiu Hunsa is dead. Wasiu was my senior brother. I am 21 years old. On 6/8/2007 I was going to work at about 8.30a.m. Something happened that day. That morning I and my younger brother, Mulero, a tailor apprentice with the accused person, we were going to work. I carried Mulero on my bicycle to drop him off at his place of work first before going to my place of work. Shortly before we got to Mulero, shop, we were stopped by the accused person?s wife who was shouting Mulero, Mulero, Oga e ti gun egbon e o, (Mulero, Mulero, your boss had stabbed your brother). Mulero wanted to get down from the bicycle, I urge him not to, that we should go and see our brother that was stabbed. On getting to the accused person?s shop, we saw Wasiu Hunsa. He called me that the accused had stabbed him and that I should come and take him to the hospital. I saw the deceased with blood all over

him. I also saw a scissors with a broken tip on the floor; I asked the deceased to get up. He told me he couldn?t because he had been stabbed by the accused person. I asked Mulero to assist me to pull him up. He told us he could not stand up. I got hold of his phone but it had low battery. I left for a business center to make call to my brother Abbey. I told him to come to the accused person?s shop in Ajegunle, to come and see the deceased who had been stabbed. When I got back to the scene, I asked the deceased what happened. He told me there was a disagreement between him (deceased) and the accused person, the previous? day and that he (deceased came to beg the accused). He said the accused did not heed his plea but asked him to leave his shop and when he (deceased) was about leaving he started to stab him on the back and other places. I saw blood all over the deceased?s body and wounds all over his back and neck. I and Mulero managed to put the deceased on a Motorcycle and took him to King Cross Hospital, Ogosa. At the King cross Hospital, the deceased was rejected and we were asked to take him somewhere else. I stopped a vehicle and

transferred the deceased into it and asked the driver to take us to the General Hospital Idiroko. On getting there, I left the deceased in the car and took motorcycle home to meet my father’s brother Asiwaju Hunsa. I told him the accused person had stabbed the deceased at Ajegunle and that I have taken him (deceased) to the general Hospital. We both left for the scene of the incident (the accused person?s shop) in Ajegunle. At the shop we did not get down from the Motor-cycle, we left immediately for the general Hospital. When we got to the Hospital Asiwaju Hunsa (Baba) went to the vehicle in which the deceased was and I left for home. I can identify the scissors I saw at the scene. This is it.
Omotosho – I seek to tender the scissors as I.D.
Akintunde – No objection.
Court – Scissors marked I.D. 1.
I went to the scene on a bicycle. I and Mulero took the deceased to the hospital on a Motorcycle. The motorcycle belonged to the deceased. We found the motorcycle in the accused?s shop.
Cross- Examination -Akintunde.
The deceased in his life time and the accused person were close friends. I know they were both members of a

contribution scheme. I was so terrified and surprised when I got to the accused person’s shop and saw the deceased in a pool of his blood. It was the deceased who asked me to take him to the hospital that he had been stabbed. I was not eager to take him to the hospital until he asked me to. I became anxious when he asked me to take him to the hospital. He had not started gasping then. He was talking well. I called Abbey but he was late in coming. It was only the deceased I met in the shop. Though there were people across the road, they did not move near the scene, I don?t know any of them. I used to go to the accused person’s shop before the incident. I entered the shop on the day of the incident. The shop was not disorganized. I told the police everything.
Akintunde – I apply for the Statement of the Witness to the police- I have been given the statement dated 7/8/2007 and 14/8/2007 made by the witness at Idiroko and the State Police headquarters.
Witness – I can identify my signature on the statements. The statements were recorded by the Police. I only signed. I identify my signature on these statements dated 7/8/07 and 14/8/07?.<br< p=””

</br<

Court – admitted as Exhibits A and A1. Exhibits A was read and interpreted to the witness in Yoruba. He understood and confirmed it as his statement to the Police. Exhibit A1 was also read and interpreted to the witness in Yoruba. He understood but denied some of portion of the statement that he did not tell the police such.
Court – continues, “what the accused?s wife said was that the deceased had been stabbed by the accused. I did not tell the police that it was Jimoh the chairman of the association that took the deceased to the hospital. I don’t know Jimoh. It was only the deceased that we met in the shop I told the police all that I saw at the scene. Mulero is still alive. Asiwaju Hunsa (Baba) is still alive? (At page 9-11 of the record).

It is necessary to state upfront that the PW1 was not an eye witness at the scene. He reported what he was told by the Appellant?s wife, the deceased and what he observed and did at the scene and with the deceased.

Upon these facts, the Appellant was prosecuted convicted and sentenced to death by hanging for the murder of the deceased.

?Six grounds of appeal were filed on the

3//01/2014. The Notice of Appeal dated 31/01/2014 is at pages 50-54 of the records.
The Prosecution called four witnesses while the Appellant was the sole witness for himself.

The Appellant seeks inter alia the order of this Court setting aside the Judgment of the High Court Of Ogun State Ilaro delivered on the 12/10/2010 by Hon. Justice O. A. M. Onafowokan.

The Appellant’s brief dated 19/05/14 was filed on 20/05/14 in which three issues were raised. The issues are:
ISSUES FOR DETERMINATION
i. Whether the trial of the appellant validly had been conducted. Relates to Ground No. 1 of the Grounds of Appeal.
ii. Whether the finding of the trial Court to the effect that the Appellant ?killed the deceased with a vengeful motive? is supported by the evidence before the trial Court.
Issue No iii relates to Ground No 2 of the Ground of Appeal
iii. Whether the trial Court was wrong to hold that the Appellant have no reasonable apprehension of death or grievous harm to his person in the face of the nature and purport of Exhibit C and the circumstances of his encounter with the deceased. ground No 3, 4 and 5 of the Grounds of Appeal.
The issues are each duly tied to the grounds of

appeal.

On the 17th September, 2015 the Respondent filed it’s Respondent?s brief dated the 16/09/15. The brief was regularized by a motion granted and deeming the brief as duly filed on 06/04/16.

Three issues were equally formulated by the Respondents in their brief of argument. The issues are:-
i. Whether the trial of the Appellant had been validly conducted.
ii. Whether the prosecution proved that the accused/Appellant had the motive and intention to cause the death of the deceased beyond reasonable doubt at the trial of this case.
iii. Whether the learned trial Judge was right to have held that the defence of self defence could not avail the accused/Appellant.

The issues are similar. It is necessary to state here that issue one was withdrawn and struck out along with its ground of appeal. This was sequel to the filling of a supplementary record which clearly bore the pages of the proceedings showing that the Appellant was properly and dully arraigned with his plea well documented.

This appeal will be determined on the issues raised by the appellant. The issues will however be taken together as they are intertwined. It

is clear that the Appellant raised self-defence to justify his role in this matter. The implication is that there is no contention as to the fact of death of the deceased.

In all criminal matters, the burden is always on the prosecution to proof the guilt of the accused person. It is always the duty of the Prosecution to overcome the evidence of the accused, that he acted in self defence by establishing malice, an intention to fatally injure the deceased.

When self defence is raised, three situations stand out in law, either the Appellant as an accused is justified in acting in self-defence, in which case he is not guilty, or the evidence of self defence is improbable and totally incapable of belief in which case he must be held guilty. In the 3rd scenario, raising self defence could introduce a doubt which again disables the Judge from finding the accused person guilty because he is entitled to be allowed the benefit of any doubt created by his defence…. Where the accused is expected to establish a fact in his defence, the standard is not as high as that of the Prosecution and all reasonable doubts raised must enure to the accused person. (See

NAMSOH v. STATE (1993) 6 SCNJ 55; EDET v. STATE (1999) 12 SC (pt.1722.)
I find no justification to depart from this age long principle of justice.

The Respondent argues that although there was no eye witness to the incidence, the five (5) stab wounds found on the corpse is evidence of the Appellant?s intention to kill the deceased. The case of NWOKEARU VS. STATE (2013) 9 SCM P124 @ 129 is cited as the authority to impute an intention to kill by the Appellant. For the avoidance of doubt, the facts of NWOKEARU VS. STATE (2013) 9 SCM P.124 @ 129 are hereby reproduced: The Appellant’s case was stated as follows: (as reproduced in the judgment of the Apex Court per my Lord Nwali Sylvester Ngwuta, JSC.
“As I was in my room I heard people quarrelling, I then came outside and met my uncles, namely Friday Onuoha….Clustering round my father, hitting him. On my seeing this action against my father I was annoyed. I approached my uncles to leave my father. They all left my father and rushed on me and out of annoyance and self defence I stabbed the deceased, Felix Onuoho with my dagger…”
See page 125 of the record.
The evidence of the

appellant in his defence is irreconcilably in conflict with the evidence of the prosecution witnesses who gave eye witness account of the incident. The learned trial Judge, having evaluated the evidence and ascribed probative value thereto accepted the evidence of the prosecution against that of the defence. I cannot say that the learned trial Judge did not make good use of the opportunity of seeing and hearing the witnesses from both sides gave their evidence
In reconsidering the appellant?s appeal, the Lower Court considered the sworn evidence of the appellant that the dagger with which he killed the deceased was part of this military uniform against the statement of the appellant in Exhibit B that the dagger was not part of his uniform but his personal property. This has a negative impact on the appellant?s plea that he acted without intention?.

A vital differing element in Nwokearu’s case is that the Prosecution witnesses were eye witnesses. The Appellant in NWOKEARU?s case also did not state the truth about the dagger which dealt the fatal blow. Unlike in this case where the pair of scissor is an integral tool of the

Appellant?s profession.

In view of the clear difference, did the Appellant have time to form any intention other than the need to fight for his life?

It is the primary duty of the learned trial Judge to evaluate evidence and ascribe probative value to the testimony of the witness in trial. The trial Court has this vital duty in that it is the learned trial Judge who has the privilege of seeing, hearing and assessing the silent but salient mannerism of the witnesses as they testify. BAKARE v. THE STATE (1987) 3 SCNJ 1, (1987) NWLR Pt. 52 p. 579; RICHARD IGAGO v. THE STATE (1999) 6 NWLR pt. 608 p. 568).
For this reason, an Appellate Court is always weary, with due deference to the trial Court, not to interfere with the evaluation, findings and conclusions of the trial Court. It is not the duty of this Court to replace its opinion for those of the trial Court.
The exception to this general rule is when for instance, the consideration of documents form part of the evaluation of the trial Court. This Court shares the same privilege to evaluate the document and determine if the basic principles of law were duly applied. Further, when the

evaluation of evidence and the weight attached thereto is challenged for good reasons, this Court has a duty to ensure that the weight of evidence is applied in accordance with the principles of law. This Court must sift through the evidence and its application by the trial Court as complained against in the Notice and Grounds of appeal.
When this application is improperly done, the decision of the trial Court could be rendered perverse.- (refers MINI LODGE LTD v. NGEI (2009) 18 NWLR Pt.1173, 254; BAMGBOYE v. OLANREWAJU (1991) 4 NWLR Pt.184, 1321; KUOMOLA v. ONIWAYA (1990) NWLR Pt.146 617; ONIAH v. ONYIA (1987) 1 NWLR Pt. 99, 514; THE STATE v. IDAPU EMINE & ORS (1992) NWLR (Pt.256, 658).

The learned trial Judge found and held that the Appellant killed the deceased with a “vengeful motive”. The Respondent has not disproved the assertion of the Appellant that the deceased approached the Appellant aggressively and told him that today was his last day. There was also evidence before the Court that the Father of the deceased is a herbalist. Given the cultural and social environmental setting within which the incident took place, the fact that some

rings could produce the effect boasted about by the decease must not be dismissed with a wave of the hand. The question to ask and answer is at what point should intention be imputed? Would a man who is attacked in his-premises, at his work place by an intruder have the time to pounder over what to do or fight for his life in defence against the attacker? The facts in this appeal are not comparable with those of NWOKEARU VS. STATE. The testimony of the Appellant before the learned trial Court was that the deceased slapped him and he fell to the ground. While still on the ground that the deceased pounced on him and he had to defend himself. It is therefore not improbable that the majority of the stab wounds inflicted on the deceased were more on the back. The position of the wounds as accepted by the prosecution and the trial Court is consistent with the testimony of the Appellant. The part of the body of the deceased available to the Appellant to assail in defence of himself was the back. Unfortunately, the Prosecution failed to call the Medical Doctor who performed the autopsy on the corpse to explain the implication of the position of the wounds.

?In

challenging the defence of self defence put up by the Appellant the learned Counsel for the Respondent has also commended the case of AFOSI VS. STATE (2013) 12 SCM P. 20 @ 32 AND ADEYEYE VS. THE STATE (2013) 2 SCM 20 @ 31. The facts of AFOSI VS. STATE (supra) are clearly distinct from those of this appeal; the case of the Prosecution goes thus:
“At about 9.30pm on 23/8/1997 in front of his house, the deceased tried to intervene in a quarrel between the Appellant and the 3rd PW ? ONE Musibau Elesin, whom the Appellant had accused of shining torchlight on his face. In the course of trying to pacify them, Appellant turned choleric. He cursed the deceased ceaselessly in the presence of the 1st PW, the wife of the deceased. Within a jiffy, the Appellant rushed into his house which was close by. He emerged with a dagger with which he stabbed the deceased in the back. The deceased slumped with the attack and fell down. The people around raised alarm which woke the 2nd PW, the deceased?s brother, from sleep and came out to the scene. (Emphasis mine)
However, the Appellant?s own story was slightly different. It briefly goes thus – He, the

Appellant had a brawl with the deceased in the night of 23/8/1997 when the deceased smashed his gasoline lantern and pounced on him with some other persons from which he, the Appellant sustained injuries in the back of his head, while the deceased received his own injury on his back. He was not sure the deceased died from the encounter. The Appellant found himself in the hospital to receive treatment for the injury he sustained.”

?It is necessary to state upfront that there was no independent eye witness at the scene of the incidence in the appeal under consideration. The testimony of the Appellant both to the Police and on oath in Court also unequivocally raised self-defence in response to the case of the prosecution.

?On the said cases, it is conceded that an accused who was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm is entitled to use and apply such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from danger. Indeed he is so entitled even though such force may cause death or grievous harm. The condition for such response is however subject to

whether self-defence was necessary and whether the injury inflicted was proportionate to the threat offered or excessive. Section 286 of the Criminal Code gives a statutory support to the right of accused person to apply force in self-defence.
These two conditions stated in ADEYEYE VS THE STATE are clearly subjective, like the test of what a reasonable man thinks. A man who is on the ground under the weight of his assailant who had threatened his life is certainly not in a position to reason in terms of caution or proportion. His paramount thoughts and strategy would be survival at whatever cost!

?The argument of the learned Counsel for the Respondent that the apprehension of death had already passed and therefore self defence was unnecessary is neither tenable nor applicable in the circumstance of this appeal. The Appellant was the one on the ground under the weight of his assailant. Can it reasonably be said that the danger had passed when the Appellant was struggling to free himself from the grip of his assailant? It has not been disputed that the Appellant was at work cutting clothes which is in the natural course of his duty as a tailor, A pair

of scissors is also a common tool of work in the Appellant’s profession.

The Prosecution did not adduce evidence to show that the Appellant got up after the initial assault by his assailant to pick up the pair of scissors and used it to stab the unarmed deceased five times. There was no eye witness to the altercation between the Appellant and the deceased. The Appellant was consistent in stating that he had the pair of scissors in hand when the deceased slapped him and a fight ensued. The facts at the disposal of the trial Court is that the Appellant was at his place of work. It was the deceased who left his abode and interfered with the affairs of the Appellant who was already at work. Did the Appellant have a right to defend himself against the son of a herbalist who threatened his life?

Thinking objectively and with no threat of danger, Exhibit C appears harmless. The Appellant was however not in a position to think objectively about Exhibit C. His life was in danger being in a fight with a person who had threatened his life by the means of Exhibit C. For as long as the Appellant was engrossed in a struggle with the deceased the Appellant was

entitled to feel endangered and needed to free himself. One fatal blow which freed him from the grip of the deceased could have taken away his apprehension of danger.

In the case of AFOSI VS STATE relied on by the Respondent there was a time lapse, therefore, the subsequent act of the Appellant was regarded as “vengeful”. The facts are clearly distinguishable with the instant appeal where the act was continuous.

In convicting the Appellant, the learned trial Judge made some findings which were not inconsistent with the defence of the Appellant. Some of those pronouncements of the learned trial Judge are respectively on pages 45-47 of the records for this appeal. Some are hereby reproduced:
“It is clear from the two statements of the accused person and his evidence on oath that save for the alleged ring – Exhibit C, the accused did not say the deceased was armed with any weapon, lethal or otherwise; In both Exhibits E and F, the accused did not say he was obstructed, inhibited or prevented by the deceased in any way from escaping. The ring he referred to apparently is Exhibit C. The evidence on record is that Exhibit C was neither found on the

deceased nor at the scene of crime rather it was the accused person who produced it three days after?.

?This fact is however consistent with the statement of the Appellant that when he freed himself from the deceased, he removed the ring which the deceased had removed from his pocket and wore in his presence with the threat that by means of the use of the said Exhibit, that would be the Appellant last day. The Appellant stated that the deceased blocked him in the shop and would not allow him to escape. A visit to the scene would have laid this issue to rest. The Prosecution gave no evidence whatsoever about the size of the shop to enable the learned trial Judge determine how much space was available to the Appellant to escape from the initial aggression of the deceased. This lacuna raises a doubt which must be resolved in favour of the Appellant. (See page 46 At page 47 His Lordship of the trial Court also held as follows:
“…I find as a fact and so hold that on the day and time of the incident, the deceased was not armed with any weapon, lethal or otherwise, neither did he use any weapon on the accused person; I find and hold that even if the

deceased used Exhibit C to hit the accused person, it had no effect on him or affected his judgment; I also find as a fact and so hold that the decease did not obstruct, inhibit or prevent the accused person in any way from escaping. The corollary which I find established is that by the accused person?s own showing and indeed from the entire admitted evidence, there was no shred of evidence or action directly or remotely linked to the deceased to put the accused person in any reasonable apprehension of imminent danger to justify his action as evident in Exhibits H, H1, H2 and D”.

This finding of the learned trial Judge totally ignores the fact that deceased was actually the aggressor who charged into the shop of the Appellant making threats to his life ? and the deceased therefore initiated the struggle which ensued. His Lordship reported the struggle thus:
What is apparent from Exhibits E and F and indeed the evidence of the accused under oath devoid of the incredible embellishment is that there was a struggle between the accused person and the deceased while he (the accused) was armed with Exhibit B. The deceased gave the

accused a fist blow and he fell down apparently as a result of the force of the blow. Though the accused was not injured or incapacitated in any form, he in reaction stabbed the deceased with Exhibit B not once but five times as evident on Exhibits H, H1, H2 and D. In effect the accused person in reaction to a fist blow stabbed the deceased five times. It is incomprehensible that in spite of being aware that the deceased was unarmed and the purported Exhibit C had not the anticipated effect, the accused person still went ahead to inflict five gruesome stab wounds (two at the front and three at the back) on the deceased; then his action, without any iota of doubt was evidently premeditated…?

?With utmost respect to the learned trial Judge this assessment of the action of the Appellant is not accurate and has not been scientifically proved by the discharge of the burden on Prosecution which always has the duty of proof. The positions of the wounds affirm the assertion of the Appellant that he fell down and the deceased went on him to continue the assault he started. What time did the Appellant have to be aware that the threat to his life by means

of Exhibit C had failed?

No evidence was adduced to dislodge the testimony of the Appellant that he was caged in by the deceased and he could not escape. Some description of the size of the shop detailing the amount of space available could have helped. A visit to the locus in quo would have cleared the air, but none of these were done. Thus evidence that should be but is not produced is deemed unfavourable to the party who fails to produce it. See Section 167(d) of the Evidence Act 2011.

Assuming without conceding that the “revengeful motive? raised by the statement of 1st Prosecution witness was a dying declaration, it was not raised by the prosecution as such. It is imperative to note that the said statement was imputed by the Police to the 1st prosecution witness. The said “vengeful motive” was supposedly borne out of the N600.00 club membership fee, which was not established as due exclusively to the Appellant.

To this end, these cases cited viz: NWOKEARU VS. STATE and AFOSI VS. STATE (supra) by the Respondent are not supportive of dying declaration and are therefore irrelevant to the instant appeal.

?In law, self-defence implies a

plea of justification for the act done, in other words, the accused is saying yes, I dealt the fatal blow but it was in an attempt to defend/protect myself from the attack of the deceased. Self-defence can provide a complete defence which can lead to the negation of the conviction and sentence of an accused person. The defence can also further expose the accused and his intention to kill or raise substantial doubt which could also lead to the discharge and acquittal of the accused. The law is that any doubt i.e. reasonable doubt raised as to the intention for delivering the fatal act must be resolved in the favour of the accused.

BASSA VORGHO VS. THE STATE (1972) NSCC 303 and Section 33(a) now 40 of Evidence Act 2011 is instructive as to what a dying declaration implies –
Section 40 Evidence Act:
“1. A statement made by a person as to the cause of his death, or as to any of the circumstance of the events which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to in danger of approaching death although he may have entertained at the time of making it

hope of recovery.
2. A statement referred to in Subsection (1) of this Section shall be admissible whatever may be the nature of the proceeding in which the case of death comes into question?.
The above was strengthened in BASSA VORGHO VS THE STATE (supra), Per Elias CJN –

In this case, the deceased is said to have made statement as to how he met his death and the motive for his being fatally injured by the Appellant.

The learned trial Judge admitted the statement as a dying declaration under the Evidence Act and upon the said statement found the Appellant guilty of culpable homicide.

It is also instructive to say that the deceased was found bleeding from two parts of his body and groveling on the ground when he made the dying declaration. The Apex Court nonetheless reduced the sentence of the accused in rejecting evidence as a dying declaration:
Also see: SOLOMON THOMAS AKPAN VS. THE STATE (1992) 6 NWLR PT. 248 P. 439.

In murder cases, as in the one in view, an intention to kill is always an essential ingredient of the crime. An argument which ensued on the

non-payment of N600.00 club membership fee has been cited as a motive by the Appellant. The facts do not support this insinuation. The Appellant is not a sole beneficiary of the said sum which is the due of membership. It must be kept in mind that it was the deceased who came on to the place of the Appellant and initiated the encounter which took his life.

Unlike in the case of AFOSI VS. STATE, the circumstances indicating a ?vengeful motive? are none existent in this appeal. No doubt, it was an unfortunate incidence in which a life was wasted. The action of the Appellant was however not pre-meditated.

With these yawning gaps in the case of the Prosecution, I find it manifestly unsafe not to accept self-defence as eliminating the existence of a ?vengeful motive? of the Appellant.

Accordingly this appeal is allowed. The decision of the Ogun State High Court is hereby set aside.

The conviction and sentence of the Appellant is set aside and quashed. A verdict of not guilty is entered for the Appellant.

?Consequentially, the Appellant shall be released forthwith from prison custody.
It is hereby so

ordered.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading before now, the judgment delivered by my learned brother, M. B. Dongban-Mensem, JCA.

Self-defence as a defence has been enshrined in Section 286 of the Criminal Code, Cap. C38, Laws of the Federation of Nigeria, 2004. It provides that:
“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 likely, to cause death or grevious harm?
By the above stated provision therefore, if the assault on the accused by the assailant is such as to cause reasonable fear of death or grevious harm, and the person using the force as a defence believes, on reasonable grounds’ that such force is necessary to preserve his life or that of another person from eminent death or grevious harm, he would be justified if he applies such force. It should be noted that the accused should not be found guilty of provoking the assault.
For the defence

to avail an accused person, it must be shown that he reasonably believed that there was no other way of escaping from death or grevious bodily harm, other than to apply such force as he did. Furthermore, that he tried to disengage from the event, to no avail. In other words, that he took reasonable steps to avoid the fight. See Sampson Nkenji Uwaekweghinya v. The State (2005) 2 NSCQR P. 570 at 507. In the instant case, there was no eye witness of the events that led to the death of the deceased. The only person, alive who was at the scene at that time is the Appellant himself. He gave unchallenged evidence that it was the deceased who provoked the incident, threatening to terminate his (Appellant?s) life that day. The deceased did give a blow to the Appellant while wearing some rings which he boasted as having potent spiritual powers; and the accused fell to the ground as a result of the blow. At that time, the deceased had helmed him in, in the shop with no way of escape. After knocking him down, the deceased pounced on him with the apparent intention of making true his threat. At that stage, the accused had no option than to apply one of the tools of

his trade, a scissors, which he was hording at the time of the incident. In the circumstances of the case therefore, the defence of self-defence, in my view, should be allowed to avail the Appellant. See also Laoye v. The State (1985) 2 NWLR (Pt.10) p. 832; and Joseph Kwaghshir & Anor v. The State (1995) 3 NWLR (Pt. 386) p. 651 at 669.

For the above stated reason and the other reasons ably set-out in the lead judgment I also will hold that this appeal has merit. It is accordingly allowed. The judgment of the Court below is hereby set aside. The conviction and sentenced passed on the Appellant are accordingly set aside; and he is hereby discharged and acquitted.

NONYEREM OKORONKWO, J.C.A.: The facts of the case that led to this appeal had been given in the lead judgment of my brother Dongban-Mensem JCA.

The highlight of it is that the appellant believing that the deceased, who appellant alleged attacked him in his shop was armed with two juju rings one white and one black and believing that that such juju rings had powers of witchcraft, he, (appellant) countered the attack with a scissors with which he stabbed and

killed the deceased.

The defence of the appellant was self-defence. Incidentally but very regrettably appellant was the only eye witness of events at the scene.

In considering the appeal, my lord Dongban-Mensem restated an old principle at page 9 of the lead judgment thus:
“When self-defence is raised, three situations stand out in law, either the Appellant as an accused is justified in acting in self-defence, in which case he is not guilty, or the evidence of self-defence is improbable and totally incapable of belief in which case he must be held guilty. In the 3rd scenario, raising self-defence could introduce a doubt which again disables the Judge from finding the accused person guilty because he is entitled to be allowed the benefit of any doubt created by his defence?
Where the accused is expected to establish a fact in his defence, the standard is not as high as that of the Prosecution and all reasonable doubts raised must enure to the accused person.”
Without prejudice to the outcome of this appeal, the policy of the law is to consider belief in witchcraft or juju as unreasonable and not to accredit such belief in criminal

proceedings. This policy of the criminal law was very elaborately outlined by Foster-Sutton P in the West African Court of Appeal case at Gadam vs. R (1954) 14 WACA 442 where the facts and holden were as follow:
“The appellant’s wife had a miscarriage and was mortally ill. This the appellant bona fide attributed to her having been be-witched by two women. He struck one of them on the head with a hoe-handle in the belief that striking her would destroy the spell. She died of the blows. Foster-Sutton P., in delivering the judgment of the West African Court of Appeal dismissing an appeal against a conviction for murder said:
I have no doubt that a belief in witchcraft, such as the accused obviously has, is shared by the ordinary members of his community, It would however, in my opinion be a dangerous precedent to recognize that because a superstition which may lead to such a terrible result as is disclosed by the facts of this case, is generally prevalent among a community, it is therefore reasonable. The Courts must, I think, regard the holding of such beliefs as unreasonable…”
See also Konkomha vs. R (1952) 14 WACA 236. These authorities have

been followed in Nigeria ever since and so belief in witchcraft or charms or juju is never to be accredited or used to absolve from criminal responsibility.
However, in this case, appellant alleged an attack on his life that necessitated his acting in self-defence.
My lord pointed out in the third scenario of the principle quoted earlier, “thus raising self-defence could introduce a doubt which again disables the judge from finding the accused guilty because he is to be allowed the benefit of any doubt created by the defence …..” In this case, the appellant was the sole eye witness though the manner of stabbing at the back of the deceased raises doubt about his innocence. Whichever way, doubts are resolved in accused favour.

?It is in this regard that I support the lead judgment and abide by the outcome.

Appearances

Femi Onibalusi, Esq.For Appellant

AND

F. F. Fakolade (PSC, Ogun State Ministry of Justice)For Respondent