JIKA v. STATE (2022)

JIKA v. STATE

(2022)LCN/16941(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, March 11, 2022

CA/YL/124C/2021

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

ABUBAKAR JIKA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A PROOF BEYOND REASONABLE DOUBT IS ATTAINED ONCE ALL THE ELEMENTS OF INGREDIENTS OF THE OFFENCE CHARGED HAVE BEEN DULY ESTABLISHED BY EVIDENCE

In law to secure conviction of an accused person, the Prosecution must by cogent and credible evidence prove the alleged offence beyond reasonable doubt. A proof beyond reasonable doubt is attained once all the essential elements of ingredients of the offence charged have been duly established by cogent and credible evidence. There is therefore, in law as rightly submitted by the Respondent’s counsel no duty of the Prosecution to prove its case beyond all shadows of doubt before a conviction can be secured. See Emmanuel Eke V. The State (2011) 200 LRCN 143 AT p. 149, Dike V. The State (2022) NWLR (Pt. 1813) pages 368-403.
In Bakare V. The State (1987) NSCC 267 AT p. 273, the erudite Oputa JSC, (God bless his soul) had expounded the legal requirement of “proof beyond reasonable doubt” succinctly thus:
“Also it has to be noted that there is no burden on the Prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable doubt. Reasonable doubt will automatically exclude unreasonable doubt, imaginary doubt and speculative doubt, a doubt not borne out by the surrounding circumstances of the case… Absolute certainty is impossible in human adventure including criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability.”
See also Chukwuma V. FRN (2011) All FWLR (Pt. 585) 231, Shurumo V. The State (2011) All FWLR (Pt. 568) 864, Agbo V. State (2006)6 NWLR (Pt. 977). PER ABUBAKAR, J.C.A.

ESSENTIAL ELEMENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

In a charge alleging culpable homicide punishable with death under Section 221 of the Panel Code, the law is very well settled that the Prosecution has the onus, an onus which in criminal trials never shifts, to prove the following essential elements of the offence of culpable homicide punishable with death, to wit:
i: The fact of the death of the deceased;
ii: That the death of the deceased was caused by the act of the accused person;
iii: That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable result.
See Alhaji Mua’zu Ali V. the State (2015) 5 SCM 26. See also Tajudeen Iliyasu V. The State (2015) 11 NCC 300, Uguru V. The State (2002) LPELR 3325 (SC) and Umar V. The State (2014) 238 LRCN 141.
The Respondent had the unshifting burden of proving both the physical elements, that is the death of Mustapha Hamajoda as caused by the Appellant on the 14/7/2014 and the mental element in the Appellant to do so intentionally with the knowledge that death or grievous bodily harm was the probable result of his act. In law a failure on the part of the Respondent to prove any or all of the essential elements that constitute the respective offences with which the Appellant was charge would be fatal to the charge not so as proved as required by law. PER ABUBAKAR, J.C.A.

WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

It must also be pointed out that in proving the guilt of an accused person, the Prosecution has open to it three basic types of evidence with which to prove the guilt of accused person, namely:
i: Confessional statement;
ii: Circumstantial evidence and
iii: Evidence of eye witness.
See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81, Emeka V. The State (2001) 14 NWLR (Pt. 734) 666, Peter Igho V. The State (1978) 3 SC 87, Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349. PER ABUBAKAR, J.C.A.

THE POSITION OF LAW ON RAISING SELF DEFENCE BY AN ACCUSED PERSON CHARGED WITH CULPABLE HOMICIDE

Section 59 of the Penal Code provides that nothing is an offence which is done in the lawful exercise of the right of private defence.
The defence of self defence is available only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. The accused will be entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm.
Raising the defence of self defence by an accused person charged with culpable homicide presupposes that the accused admitted to committing the offence but is claiming that he had no other option available. Self-defence that will have an impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable. The ingredients of self defence are:
(1) The accused person must be free from fault in bringing about the encounter.
(2) There must be present, an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(3) There must be no safe or reasonable mode of escape by retreat; and
(4) There must have been a necessity for taking life.
In order to sustain the defence of self-defence all the above ingredients must exist and be established. See Afosi Vs. The State (supra) at page 26 – 28.
According to the testimony of DW2 a star witness:
“Mustapha removed knife and stab Abubakar by the hand (sic) and Abubakar screamed and collected the knife and stabbed the deceased on the neck, that Mustapha remove horn to stab the accused but by then the deceased had no strength because of bleeding and the deceased collapsed…”
Under cross-examination, he gave evidence that:
“… that the accused successfully disarmed the deceased and Mustapha was not holding both knife and horn at the same time..”
See pages 118-119 of the record of appeal. PER ABUBAKAR, J.C.A.

MOHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Adamawa State High Court sitting in Yola delivered on 14th October, 2019 in Suit No. ADSY/36C/2017 presided over by Bulila Ladukiya Ikharo, J. On 25th October, 2018, the Appellant was arraigned on a one-count charge of culpable homicide punishable with death under Section 221 (b) of the Penal Code Law. The charge read thus:
“Abubakar Jika on or about the 14/7/2014 about 2030 hours at Sangasumi Ward, Ganye of Ganye Local Government Area within the Ganye Judicial Division caused the death of one Mustapha Hamman Joda of the same Sangasumi Ward, Ganye by doing an act to wit, stabbing him with a knife on his neck with the knowledge that death would be probable consequence of your act.”

The Prosecution in proof of its case at the trial called four (4) witnesses, tendered two (2) exhibits which were all admitted and marked accordingly. The defence on its part called two witnesses. At the conclusion of the trial, the learned trial judge held that the Appellant intended to cause grievous bodily harm to the deceased and convicted the Appellant for murder and sentenced him to death by hanging.

This decision aggrieved the Appellant, so he filed a Notice of Appeal dated 3/01/2020 containing four (4) grounds of appeal. (pages 137 – 143 of the Records). The record of appeal was compiled and transmitted to this Court on 28/9/2021. It was deemed properly compiled transmitted on 1/11/2021. The Appellant’s brief of argument was filed on 5/10/2021 but deemed properly filed on 1/11/2021. The Appellant’s Brief of Argument filed on 5/10/2021 was settled by Charles Adeogun-Phillips, Esq. Learned counsel formulated 2 issues for determination reproduced hereunder:
1. “Whether the lower Court was right when it held that the Appellant had the intention to cause the death of the deceased?” (Distilled from ground 1).
2. “Whether having regard to the evidence before the lower Court, particularly the evidence of DW1 and DW2, the Appellant is not availed of the defence of self-defence and provocation?” (Distilled from grounds 2 and 3).

The Respondent’s Brief of Argument filed on 1/2/2022 was prepared by I. S. Barde, Esq. Senior State Counsel II Attorney-General’s Chambers, Ministry of Justice Yola. Learned counsel adopted the two issues for determination formulated by learned Counsel to the Appellant and argued them together. On 1st February, 2022 learned counsel adopted their respective briefs of argument.

In arguing his issue one, the learned Counsel to the Appellant submitted that in a criminal matter, the onus is on the prosecution to proof its case beyond reasonable doubt. He relied on Woolmington (1935) AC 462 and Section 135(2) of the Evidence Act. Counsel cited Section 221(b) of the Penal Code of Adamawa State and submit that the question that begs for answer is whether considering the evidence before the lower Court, it was right to have held that the Respondent have proved all the elements of the offence against the Appellant. He referred to the judgment of the lower Court at page 172 of the record of appeal and argued that the said decision does not flow from the evidence before the Court. The evidence of DW1 shows that the deceased and the Appellant were fighting and the deceased brought out knife and first stabbed the Appellant and the Appellant managed to collect the knife from the deceased. That he did not know when he stabbed the deceased. He referred to paragraph 2 of page 105 of the record. That this piece of evidence was not challenged either by way of cross-examination or otherwise. The law is trite that an unchallenged evidence is deemed admitted and same should be acted upon by the Court. He relied on Matanmi v. Dada (2013)7 NWLR (Pt. 1353) 319 AT 336 para B-C. It was submitted that the conclusion of the lower Court was erroneous and same should be set aside. Mohammed v. State (1991) 5 NWLR (Pt. 192) was relied on.

It was argued that where from the facts of the case as is in the instant appeal, it is discovered that one of the elements of a particular offence is missing the accused should be discharged and acquitted. It is the concurrence of both the physical and mental elements of an offence that makes an accused culpable. He relied on Idagu v. State (2018) 15 NWLR (1641)131.

Counsel submit further that the evidence of PW1 to the effect that he was at home when one Musa Usman came to tell him that his brother, the deceased was in a fight and has been stabbed is hearsay evidence. PWII and PWIII’s evidence were also hearsay. He referred to pages 82-84, 84-85 and 96-98 of the record of appeal. That PWIV who left the scene did not also witnessed what happened to his friend. It was further submitted all the witnesses of the prosecution relied on the evidence of the people who were not called to testify before the lower Court. The prosecution’s case was built entirely on hearsay evidence and therefore, inadmissible in law. The prosecution’s evidence offends the provision of Sections 37 and 38 of the Evidence Act, 2011. He also relied on Musa Umaru Kasa V. The State (1994) LPELR -1671(SC) and Obot V. State (2019) LPELR – 48172 (CA).

It was argued that the evidence of DWI and DWII are more credible and direct as they are not hearsay evidence unlike that of the prosecution’s case. He relied on Agbi V. Ogbeh (2005)8 NWLR (Pt. 926) P. 40 AT 134.

In arguing issue two (2) the learned Counsel to the appellant submitted that evidence of the prosecution and the Appellant point to the fact that Mustapha, the deceased was holding knife and it was the deceased that first stabbed the Appellant before the Appellant seized the knife from the deceased. That even after seizing the knife from the deceased, the deceased brought out a horn to attack the Appellant. Counsel relied on Sampson Nkemji Uwaekweghinya V The State (2005)9 NWLR (Pt 930) and submitted that the lower Court did not adequately consider the defence of self defence and provocation put up by the Appellant. The learned counsel to the appellant submitted that from the evidence of DWI, there is no doubt that he stabbed the deceased out of fear. If the deceased could still bring out a horn to hit the Appellant in his stomach after the knife has been seized from him, it is clear evidence that a reasonable man of the Appellant’s standing and education will believe that the deceased still had other dangerous weapon to hit the Appellant. The lower Court was in error to have held that self defence did not avail the Appellant. See Sampson Nkemji Uwaekweghinya V The State (supra) Ratio 15 and Iheanyighichi Apugo V. The State (2006) NWLR (Pt. 1002) page 253. It was further submitted that it was lawful for the Appellant to have defended himself from the deceased assailant as the only option left for the Appellant not to get killed was to use the force he used on the deceased. Counsel referred to the evidence of DWII at page 108 of the record of appeal and submit that the lower Court was in error when it discountenance the credible evidence of DWII.

It was contended that the major ingredients of self defence were enumerated by the Supreme Court in the case of Agbonmwanre Omoregie V The State (2008) 18 NWLR (PART 1119), Ratio 1. He submit further, that the Appellant satisfied the requirements of a successful plea of self defence based on the evidence before the Court. He cited Sampson Nkemji Uwaekweghinya V The State (supra) and argued that the effect of the successful plea of self defence by the Appellant is that the Appellant should be discharged and acquitted as all the Appellant did was defend himself.

It was submitted that assuming without conceding that the defence of self-defence will not avail the Appellant, the lower Court ought to have considered the defence of provocation which was properly pleaded and based on the evidence before the Court, was properly established. Shuaibu Abdu V. The State (2017) 7 NWLR (1564) 171 was relied on. Judgment of the lower Court at page 132 of the record of appeal was referred to, and it was submitted that the lower Court was in error. It was further submitted that it was the deceased that started abusing the father of the Appellant, it was the deceased that started the act of provocation and as such the Appellant established the first element of the defence of provocation. On the 2nd ingredient that the act of provocation was sudden enough which was ignored by the Court. On the 3rd ingredient, the heat of passion had not waned as at the time the Appellant seized the knife and stabbed back the deceased. He urged the Court to set aside the decision of the lower Court.

On the part of the Respondent, learned counsel arguing the two issues together submitted that the learned counsel to the Appellant, misconceived and failed to avert his mind to the input of the provisions of Section 139 (1) & (2) of the Evidence Act, 2011 wherein he urged this Court to hold that the prosecution have not discharged it statutory burden required by law. It was argued that once the prosecution lead evidence to prove the absence of provocation and any imminent threat to the life of the accused as in the instant case, the law required the Appellant to advance evidence to contradict the prosecution’s case not otherwise as submitted by the Appellant’s counsel. DWI and DWII were very economical with the truth on the issue of how the Appellant stabbed the deceased. See Onwudiwe V. F.R.N (2008) Vol. 6 at PAGE 366. It was submitted that evidential burden may be placed by the law on either side the prosecution or the defence depending on the facts and circumstances of the case. He relied on Esangbedo Vs. The State (1989) NWLR (Part 113) 57 at 69 – 70. He further submit that where a duty is placed on a party and that party did not discharge that burden, the issue will be resolved against the party. Section 135(3) of the Evidence Act 2011 was relied upon.

It was submitted that the accused desire the consequences of his acts when he took Exhibit B and stabbed the deceased on a vital part of his body when the Appellant successfully disarm the deceased. He relied on Section 19(1) and (2) of the Penal Code Law of Adamawa State.

It was also submitted that the required burden of proof placed on the prosecution in a criminal trial has been successfully established.

He cited and Section 135(1) of the Evidence Act, 2011.

Learned counsel cited Oguntolu Vs. The State (1994)2 NWLR (Pt. 432) 503 and submitted that for prosecution to succeed, he must prove beyond reasonable doubt:
a. That the deceased died;
b. That the death of the deceased resulted from the act of the accused person and no other act and;
c. That the act of the accused person was intentional or with the knowledge that death or bodily harm was probable consequence.

He further relied on Section 19(1)(2) and 221 of the Penal Code Laws of Adamawa State (supra).

It was submitted, that an evidence of a single witness believed by the Honourable Court will successfully convict an accused even under a murder charge as in the instant case. He relied on Abogede V. State (1998) 8 LLRCNCC at 229 page 240.

It was argued that the trial Court after a careful review of all the evidence presented by both side rightly infer the mind of the accused as judicially permitted for our Courts under our criminal trials. He referred to page 127 of the record of appeal and relied on Section 19(1)(2) of the Penal Code Laws of Adamawa State (supra) and Confido Consult Services Ltd V. FRN (2018) LPELR -43676 CA PAGE 29.

It was submitted that the issue of establishing the guilt of the accused person was properly done by the prosecution and found by the trial Court. He relied on State V. Ajayi (2016) LPELR – 40663 (SC) PAGES 50. He further submit that a careful perusal of Exhibit A tendered in evidence without objection from the defence clearly gives a vivid account of how the accused murdered the deceased by stabbing him on his neck. He referred to page 77 of the record and relied on Section 28 of the Evidence Act, 2011. It was submitted that Exhibit ‘A’ is confessional in nature. This is good evidence against the Appellant and the trial Court was right to hold that the prosecution have proved their case beyond reasonable doubt. He relied on Section 29(1) of the Evidence Act, 2011.

It was argued that the prosecution can establish the guilt of an Appellant which it did, either through any or a combination of the following means – documentary evidence (Exhibits A and B) circumstantial evidence or evidence of an eye witness (Evidence of PW1-4). He relied on Abdullahi Ibrahim V. State (2014) 3 NWLR (PART 1394) PAGE 305 at 338.

It was argued that the Appellant and his witness gave evidence which is not helpful to the accused case but built the prosecution case particularly that of DWII. He further submit that the Appellant and his witness narrated a fictitious story on how the deceased stabbed the Appellant on his hand and how the deceased again removed another horn and inflicted injury to the Appellant. The Appellant did not tell the Court how these injuries were treated by him or better still by the police. He urged the Court not to place reliance on the testimony as it concerns the issue of injuries as it is untrue. He relied on Onwudiwe V. F.R.N (2008) Vol 6 LRCNCC at PAGE 366.

It was contended that for the defence of provocation to avail an accused certain elements must co-exist. He relied on Emmanuel Ogar Akong Edoko V. The State (2015) LPELR 315/2012 SC. It was argued that the appellant had opportunity to withdraw from the fight. That the accused acts was not committed in a heat of passion when he was acting not as a master of his own mind. He referred to evidence of PW1, PW2, PW3, PW4, DW1 and DW2 respectively and Exhibit A. Counsel further referred to the evidence of PW4 at page 101 of the record of appeal and DW2 at page 108 of the record of appeal and submit that considering the evidence of the witnesses, it is evidence that the Appellant will not benefit from defence of provocation and even if the defence will avail the Appellant, is only a mitigating factor. He relied on Peter Iliya Azabada V. The State (2014) LPEC SC 367/2011.

It was also submitted that it is trite law that Courts are obliged to consider the defences open to an accused person but only as disclosed or supported by a piece of evidence on the printed record. Learned Counsel cited Sheidu V. State (supra) and Emmanuel Ogar Akong Edoko V. The State (supra), John V. The State (2017)16 NWLR (Pt. 1592) page 304 at 342 and urged the Court to find that the act of the Appellant to the deceased was not proportionate to the manner he cuts the deceased on his neck a vital part of his body which resulted to his death. It was submitted that the principles laid down in Adamu Sheidu V. The State (2014) 15 NWLR (PART 1429)1 at 24-25 Paras C-G must co-exist and be established before the successful plea of self defence will avail the defendant. It was further submitted that accident as a legal defence applies as long as the defendant has no criminal intent, no evil design and did not engage in any culpable negligence. But it only applies where a defendant is engaged in lawful conduct. He referred to DWI’s testimony at page 105 of the record of appeal and argued that that piece of evidence displaced any defence of accident. He relied on Charles Egbirika V. The State (2014) NGSC (17 January, 2014). We were urged to hold that the trial Court was right in reaching its decision.

RESOLUTION
In resolving this appeal, I will consider the two issues formulated by Counsel to the Appellant and adopted by the Respondent together. They are:
1. “Whether the lower Court was right when it held that the Appellant had the intention to cause the death of the deceased?” (Distilled from ground 1).
2. “Whether having regard to the evidence before the lower Court, particularly the evidence of DW1 and DW2, the Appellant is not availed of the defence of self defence and provocation?” (Distilled from grounds 2 and 3). In law to secure conviction of an accused person, the Prosecution must by cogent and credible evidence prove the alleged offence beyond reasonable doubt. A proof beyond reasonable doubt is attained once all the essential elements of ingredients of the offence charged have been duly established by cogent and credible evidence. There is therefore, in law as rightly submitted by the Respondent’s counsel no duty of the Prosecution to prove its case beyond all shadows of doubt before a conviction can be secured. See Emmanuel Eke V. The State (2011) 200 LRCN 143 AT p. 149, Dike V. The State (2022) NWLR (Pt. 1813) pages 368-403.
In Bakare V. The State (1987) NSCC 267 AT p. 273, the erudite Oputa JSC, (God bless his soul) had expounded the legal requirement of “proof beyond reasonable doubt” succinctly thus:
“Also it has to be noted that there is no burden on the Prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable doubt. Reasonable doubt will automatically exclude unreasonable doubt, imaginary doubt and speculative doubt, a doubt not borne out by the surrounding circumstances of the case… Absolute certainty is impossible in human adventure including criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability.”
See also Chukwuma V. FRN (2011) All FWLR (Pt. 585) 231, Shurumo V. The State (2011) All FWLR (Pt. 568) 864, Agbo V. State (2006)6 NWLR (Pt. 977).

In a charge alleging culpable homicide punishable with death under Section 221 of the Panel Code, the law is very well settled that the Prosecution has the onus, an onus which in criminal trials never shifts, to prove the following essential elements of the offence of culpable homicide punishable with death, to wit:
i: The fact of the death of the deceased;
ii: That the death of the deceased was caused by the act of the accused person;
iii: That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable result.
See Alhaji Mua’zu Ali V. the State (2015) 5 SCM 26. See also Tajudeen Iliyasu V. The State (2015) 11 NCC 300, Uguru V. The State (2002) LPELR 3325 (SC) and Umar V. The State (2014) 238 LRCN 141.
The Respondent had the unshifting burden of proving both the physical elements, that is the death of Mustapha Hamajoda as caused by the Appellant on the 14/7/2014 and the mental element in the Appellant to do so intentionally with the knowledge that death or grievous bodily harm was the probable result of his act. In law a failure on the part of the Respondent to prove any or all of the essential elements that constitute the respective offences with which the Appellant was charge would be fatal to the charge not so as proved as required by law.

It must also be pointed out that in proving the guilt of an accused person, the Prosecution has open to it three basic types of evidence with which to prove the guilt of accused person, namely:
i: Confessional statement;
ii: Circumstantial evidence and
iii: Evidence of eye witness.
See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81, Emeka V. The State (2001) 14 NWLR (Pt. 734) 666, Peter Igho V. The State (1978) 3 SC 87, Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.

On the admitted and available evidence before the Court below, as in the record of appeal, it is very clear that both parties are agreed on some of the aspects of the case as touching on the fact of the death of the deceased. PW1 testified that:
“… on the way to the hospital then my brother died and at the hospital the doctor confirmed that he was dead…”
See page 83 of the record of appeal.
PW2 testified thus:
“…photograph of the deceased was attached to the case file and deceased was later released to the family members for burial.”
See page 84 of the record of appeal.
PW4 stated that:
“…I went into (sic) and saw the corpse of the deceased..”
See page 102 of the record of appeal.
On the part of the Appellant, giving his evidence as DW1 stated that:
“…I am not happy about Mustapha’s death I did it to defend myself.”
See pages 106 of the record of appeal.
DW2 testified thus:
“…the doctor was trying to restitute or revive him and he gave up.”

See page 109 of the record of appeal.

From the pieces of evidence above from both sides, it is as glaring as the sun that the first ingredient to with; ‘the fact of the death of the deceased’ is not in dispute between both the Appellant and the Respondent.

In considering the second essential element of the offences charged to wit; that it is the act of the Appellant that caused the death of the deceased, a careful perusal of the record of appeal also shows that it is also not in dispute in the instant case that it was the Appellant that caused the death of the deceased Mustapha Hamajoda. The Appellant in his statement to the police stated that:
“we started fighting on the (sic) process Mustapha was holding a knife subsequently I snack (sic) the knife from him and stabbed him. He was later rushed to general hospital Ganye where a medical doctor certified him dead..”
See page 17 of the record. Also at page 105 – 106 of the record of appeal, the Appellant while testifying as DW1 stated as follows:
“I collected the knife and stab him… I just saw a wound on his neck… I am not happy about Mustapha’s death I did it to defend myself.”

The Appellant himself admitted to stabbing the deceased on the neck which resulted in his death. Therefore as I said earlier there is also an alignment on the second part of the ingredient.

The main bone of contention between the parties which is apparent in this case is the third ingredient which is; ‘That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable result’. In other words, the intent of the Appellant. Whether the mens rea to inflict grievous bodily harm or to kill the accused was in the contemplation of the Appellant. The trial Court held that:
“The stabbing was with a knife and it was on the neck of the deceased see the testimony of PWI and IV, DWI and II which was a vital part of the body, there is no greater intention by the accused than to cause the death of the deceased, not even knowing that this act will cause grievous hurt but he knew that the probable result of his act would be death.”
See page 127 of the record of appeal.

The deduction of the intent of the Appellant would be pulled out from the evidence on record before the Court. The fact that the Appellant stabbed the deceased on the neck which incidentally led to his death is undisputable. All the witness of both the prosecution and defence gave testimony on the fact that the knife stab on the deceased neck led to his death. DW2 testified that He met Mustapha and Abubakar fighting, they were fighting and it was getting hotter and serious. He saw Mustapha drew his trouser and removed a knife and stabbed Abubakar with the knife on the hand and Abubakar screamed and collected the knife from Mustapha. After Abubakar has collected the knife from there he stabbed Mustapha by the neck and Mustapha removed a horn and stabbed Abubakar on the abdomen. Under cross-examination, he said that the accused successfully disarm Mustapha. See pages 108-109 of the record of appeal. None of the Respondent witness was at the scene when the stabbing occurred. However DW2 was at the scene when it occurred.
In law conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence charged, failing which an accused person is entitled to be discharged and acquitted. However, in proving the guilt of an accused beyond reasonable doubt, it does not impose on the Respondent any greater duty than it simply entails, which is proof of all the essential ingredients of the offence charged and not proof beyond all iota of doubt or proof to the hilt. See Emmanuel Eke V. The State (supra), Dike V. State (supra).

The Appellant’s counsel had argued that the Appellant acted in self defence and provocation.

Section 59 of the Penal Code provides that nothing is an offence which is done in the lawful exercise of the right of private defence.
The defence of self defence is available only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. The accused will be entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm.
Raising the defence of self defence by an accused person charged with culpable homicide presupposes that the accused admitted to committing the offence but is claiming that he had no other option available. Self-defence that will have an impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable. The ingredients of self defence are:
(1) The accused person must be free from fault in bringing about the encounter.
(2) There must be present, an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(3) There must be no safe or reasonable mode of escape by retreat; and
(4) There must have been a necessity for taking life.
In order to sustain the defence of self-defence all the above ingredients must exist and be established. See Afosi Vs. The State (supra) at page 26 – 28.
According to the testimony of DW2 a star witness:
“Mustapha removed knife and stab Abubakar by the hand (sic) and Abubakar screamed and collected the knife and stabbed the deceased on the neck, that Mustapha remove horn to stab the accused but by then the deceased had no strength because of bleeding and the deceased collapsed…”
Under cross-examination, he gave evidence that:
“… that the accused successfully disarmed the deceased and Mustapha was not holding both knife and horn at the same time..”
See pages 118-119 of the record of appeal.

From the evidence of DW2 who is the star witness being the only eye witness at the scene, it is vivid that there was no impending danger to the Appellant after he successfully disarmed the deceased, he had other options yet he went ahead to stab the deceased on the neck which is a vital part of the body. I therefore, cannot fault the finding of the trial judge that the defence of self defence cannot avail the Appellant and I so hold.

The defence of self defence having not been found in favour of the Appellant, is the defence of provocation available to him? Section 222 (1) of the Penal Code provides as follows:
“Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation …”
In Galadima Vs. The State (2012) 12 SCNJ 921 at 934 to 935 Aka’ahs JSC stated the principle of the law on provocation as follows:
“For a plea of provocation to avail the accused the burden is on him to establish:
(a) The act of provocation was grave and sudden.
(b) He must have been deprived of the power of self–control.
(c) The mode of resentment, degree or extent of retaliation must bear a reasonable relationship or proportionate to the provocation offered.
The burden is discharged on balance of probabilities and not on proof beyond reasonable doubt.”
And in Njokwu Vs. The State (2013) 2 SCNJ 147 at 169 Onnoghen JSC (as he then was) summarised the law as follows:
“Provocation, therefore consists of three elements, to wit:
(a) The provocative incident,
(b) Loss of self–control both actual and reasonable; and,
(c) The retaliation, which must be proportionate to the provocation. See State Vs. Ibe (1965) NWLR 463…”
See also Edoko Vs. The state (2015) 2 SCNJ 101 at 136 and Afosi Vs. The State (2013) 6 SCNJ 1 at 29.

The Court below considered the defence of provocation and found that it was not available to the Appellant. This is how the Court below in the judgment at page 132 of the record put it:
“From the evidence adduced before this Court particularly the evidence of PWIV, DWII and Exhibits “A” there is nothing to show that a reasonable man would have been provoked by the act of the deceased to the point of loosing self-control and doing the act the accused did.”

From the evidence on record, can it be said that the act of the Appellant was proportionate to the provocation received if any? Stabbing the deceased with a knife on the neck cannot be compared to the retaliation the Appellant exhibited. I therefore agree with the findings of the Court below that the defence of provocation is not also available to the Appellant.

Consequently, I resolve all the two issues raised for determination in favour of the Respondent and against the Appellant. I dismiss the appeal and affirm the decision of the lower Court delivered on 14th October, 2019 in Suit No. ADSY/36C/2017.

CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the judgment delivered by my learned brother, MOHAMMED LAWAL ABUBAKAR, JCA.

My Lord has adequately and comprehensively resolved the issues that arose in the appeal. I agree with the reasoning and conclusion arrived at in the leading judgment and I would add a few words to that of my learned brother.

The Appellant in his extra-judicial confession stated how he and the deceased started fighting, the deceased stabbed him on his hand subsequently he snatched the knife from the deceased and stabbed him on the neck. The deceased was rushed to Kowa Clinic and was later referred to General Hospital Ganye where he died. The Appellant made out that he did so in self defence. On when self-defence will avail an accused person in a similar situation, in my earlier judgment in ADEYEYE VS. STATE (2010) LPELR – 3624 (CA) P. 19, PARAS. C – E, I held thus:
“The Appellant has not denied murdering the deceased but, said he did so in self defence. The law would only excuse a killing if the killer had reasonable grounds to believe his life was in danger and he had to kill in order to preserve it. The belief of the accused in such a situation would be tested on objective grounds and several factors would necessarily arise in determining the objective belief, for instance, the magnitude of the force used on the deceased must be the same as that with which the accused defends himself. See LAOYE VS. THE STATE (1985) 2 NWLR (PART 10) 112.”

The learned counsel to the appellant had sought that the appellant’s conviction for culpable homicide be set aside and the appellant discharged and acquitted on the basis of having acted in self defence and provocation but, this argument is not tenable, the appellant’s life was not in danger.

I cannot fault the findings of the trial Court, the trial judge rightly held (considering the surrounding facts and circumstances of this case) that the defence of self-defence and provocation were not established by the Appellant, therefore same cannot exculpate or exonerate him. I also resolve the issues for the determination of the appeal against the Appellant.

It is my firm but humble view that the prosecution proved her case beyond reasonable doubt and if there is any appeal that is bereft of any substance or merit, this is certainly one of them and for the fuller reasons adduced in the leading judgment that I too hold that the appeal is lacking in merit, and it is accordingly dismissed.

I abide by the order made by my learned brother in the leading judgment that the judgment of the High Court of Adamawa State in Case No. ADSY/36C/2017 delivered on 14th day of October 2019 be and is hereby affirmed.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother, MOHAMMED L. ABUBAKAR JCA afforded me the opportunity of reading the draft copy of the judgment just delivered. I agree entirely with the decision of my Lord that the appeal is devoid of merit and should be dismissed. I also dismiss the appeal.