MOHAMMED v. STATE (2021)

MOHAMMED v. STATE

(2021)LCN/15166(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, June 09, 2021

CA/IB/78C/2019

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

MAMMAN MOHAMMED APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN AND STANDARD OF PROOF IN THE NIGERIAN CRIMINAL JUSTICE SYSTEM

It is abecedarian Law that in our adversarial criminal justice system which is accusatorial, the Prosecution has the onus of proving the commission of the offence charged beyond reasonable doubt. See Section 135 of the Evidence Act. Proof beyond reasonable doubt does not connote proof beyond all shadow of doubt. Proof beyond reasonable doubt also does not mean or import beyond any degree of certainty. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. See generally MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL ER 373, BAKARE vs. THE STATE (1987) LPELR (714) 1 at 12-13, THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380, ADEOYE vs. THE STATE (2011) LPELR (9091) 1 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41. PER OGAKWU, J.C.A.

WAYS THE PROSECUTION CAN PROVE THE COMMISSION OF A CRIME

In proving the commission of a crime, three ways or methods are available to the Prosecution. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and OLAOYE vs. THE STATE (2018) LPELR (43601) 1 at 13. PER OGAKWU, J.C.A.

DEFINITION OF THE OFFENCE OF MANSLAUGHTER

Manslaughter is an unintentional killing of a human being. Such a killing is not pre-meditated but accidental, in the sense that it was not intentional. See EJEKA vs. THE STATE (2003) LPELR (1061) 1 at 16, POPOOLA vs. THE STATE (2018) LPELR (43853) 1 at 21 and JOHN vs. THE STATE (2017) LPELR (48039) 1 at 51-52.

In order to establish the offence of manslaughter, the prosecution must prove beyond reasonable doubt that it was the act of the accused person, which was unlawful, that caused the death of the deceased. A causal link must be established and proved by the Prosecution between the act of the accused person and the death of the deceased. Put differently, to secure conviction for the offence of manslaughter under Section 317 of the Criminal Code of Oyo State, all that the prosecution needs to prove is the unintended and unlawful act of the accused person which harmed the deceased and caused his death: SHOSIMBO vs. THE STATE (1974) 10 SC 69 or (1974) LPELR (3066) 1 at 13, FAMAKINWA vs. THE STATE (2016) LPELR (40104) 1 (SC), NWABUEZE vs. THE PEOPLE OF LAGOS STATE (2018) LPELR (44113) 1 at 17-18 and JOHN vs. THE STATE (supra) at 38-39.

In EGBIRIKA vs. THE STATE (2014) 4 NWLR (PT 1398) 558, the apex Court held that for a killing to amount to manslaughter, it must have the following components:
1. Be unauthorized, unjustified or not excused;
2. It must have resulted from the direct or indirect act of the accused person by the unlawful act of the accused person.
3. Link the death of the deceased to the act of the accused person.
See also ADESINA vs. THE PEOPLE OF LAGOS STATE (2019) LPELR (46403) 1 at 21-23 and MAIYAKI vs. THE STATE (2008) 15 NWLR (PT 1109) 173. PER OGAKWU, J.C.A.

WHETHER OR NOT THERE IS EVIDENCE STRONGER THAN A PERSON’S OWN ADMISSION OR CONFESSION

The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A.G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387.

The free and voluntary confessional statement of an accused person alone is enough to sustain the conviction where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth: YESUFU vs. THE STATE (1976) 6 SC 167 at 173, DIBIE vs. THE STATE (2007) 9 NWLR (PT 1038) 30 at 51 and KAZA vs. THE STATE (2008) 7 NWLR (PT 1085) 125 at 166, 194 and 195. The Appellant’s confessional statements, Exhibits C and G, were admitted in evidence without objection. However, the lower Court in its judgment and the learned counsel in their submissions in this appeal, have proceeded as though the Appellant retracted the said confession in his evidence at trial. The Law is that the denial by an accused person that he did not make a statement or the retraction or resilement from the confessional statement does not render the statement inadmissible in evidence: ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111 and OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement provided the Court first applies the test for determining the veracity or otherwise of the confessional statement by seeking any other evidence, however slight, or circumstances which make it probable that the confession is true. See HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93, R vs. SYKES (1913) 1 Cr. App. R. 233, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81 and UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188-189. PER OGAKWU, J.C.A.

DUTY OF THE COURT WHEN FACED WITH A RETRACTED CONFESSIONAL STATEMENT

Definitely, there is no retraction. Howbeit, it seems that ex abundantia cautela, the lower Court treated the confession as having been retracted and applied the six-way test and then held that the confession was possible and relied on the same to convict. Now, the duty of a Court faced with a retracted confessional statement is to examine the statement in the light of other credible evidence before the Court by inquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts in the confession are true as far as can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with other facts ascertained and provided.
See IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192 and NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138.
The legal requirement is for the Court to seek other evidence, be it slight, of circumstances which make it probable that the confession is true. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Oyo State on a one count charge of manslaughter in CHARGE NO. HSK/8C/2014: THE STATE VS. MAMMAN MOHAMMED. The Prosecution called four witnesses in proof of the Charge and tendered several exhibits, including the extra-judicial statement of one Hassan Mohammadu, who was not called as a witness, and which was admitted in evidence as Exhibit B. The Appellant testified for himself and did not call any witness. In its judgment, the lower Court convicted the Appellant as charged and sentenced him to fifteen (15) years imprisonment with hard labour.

The Appellant, being dissatisfied with the decision of the lower Court appealed against the same by Notice of Appeal filed on 31st December, 2018. The judgment of the lower Court which was delivered on 18th October, 2018 is at pages 103-152 of the Records, while the Notice of Appeal is at pages 153-158 of the Records. In prosecution of the appeal, the Record of Appeal was compiled and transmitted on 1st March, 2019, and the parties thereafter filed and exchanged briefs of argument which they

adopted and relied upon at the hearing of the appeal.

The Appellant’s Brief of Argument was filed on 3rd June, 2019, but deemed as properly filed on 8th July, 2020, wherein, four issues were distilled for determination, as follows:
“(i) Whether in the absence of any eye witness evidence, the lower Court was right to have concluded that the fight between the deceased and the Appellant caused the death of the deceased. (This issue is formulated from Ground 1 of the Notice of Appeal)
(ii) Whether Exhibits “C” and “G” qualify in Law and fact as confessional statements on the sole basis of which the lower Court could have convicted the Appellant of the offence of manslaughter (This issue is formulated from Ground 2 of the Notice of Appeal)
(iii) Whether the defence of self-defence availed the Appellant in the circumstances of the suit before the lower Court. (This issue is formulated from Ground 3 of the Notice of Appeal)
(iv) Whether the intervening factor of the piece of cloth which was tied around the wound sustained by the deceased (as revealed in Exhibit ‘B”) created reasonable doubt as to

the cause of death of the deceased which should have been resolved in favour of the Appellant. (This issue is formulated from Ground 4 of the Notice of Appeal)”

In the Respondent’s Brief filed on 8th September, 2020, but deemed as properly filed on 9th September, 2020, a sole issue was formulated for determination namely:
“Whether the trial Court was right in holding that the respondent proved its case beyond reasonable doubt to warrant his conviction?”

The issue distilled by the Respondent is expansive and encapsulates the four issues nominated by the Appellant. It is therefore on the basis of the said issue that I will consider the submissions of learned counsel and resolve this appeal.

ISSUE FOR DETERMINATION
Whether the trial Court was right in holding that the Respondent proved its case beyond reasonable doubt to warrant his conviction?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court was wrong, in the absence of eyewitness account, to hold that it was the fight between the deceased and the Appellant that caused the death of the deceased. It was stated

that the only evidence relied upon by the lower Court for this finding was the purported confessional statements of the Appellant, Exhibits C and G, and that the said finding was based on conjecture and supposition devoid of any evidential support.

The Appellant’s contention on the second issue he distilled is that, by the provisions of Sections 28 and 29 of the Evidence Act, for a confessional statement to be an admission of the crime charged, it must be a direct acknowledgement of the elements or ingredients of the offence charged vide OKASI vs. THE STATE (2016) LPELR-40455 (CA) at 29-30. The Appellant referred to six-way test for ascertaining the veracity of a confession as laid down in the cases of MUSTAPHA vs. THE STATE (2007) 12 NWLR (PT 1049) 637 at 656 and DAWA vs. THE STATE (1980) 8-11 SC 236 at 267-268 and submitted that there is nothing outside Exhibits C and G to show that the fateful fight between the Appellant and the deceased was true.

It was posited that the lower Court referred to the six-way test in its judgment, but crucially failed to apply the same to Exhibits C and G, but merely held that the evidence of the PW2 and PW4,

the Investigating Police Officers (IPOs) corroborated Exhibits C and G. It was asserted that on the contrary, the testimony of the PW2 and PW4 did not corroborate Exhibits C and G. The Black’s Law Dictionary, 6th Edition, page 344 was referred on the meaning of corroboration and corroborative evidence, and it was maintained that in the absence of corroborative evidence, the lower Court was wrong to have convicted the Appellant based on Exhibits C and G. The cases of ADEDARA vs. THE STATE (2009) LPELR – 8194 at 68, MUSTAPHA vs. THE STATE (supra) and DAWA vs. THE STATE (supra) were relied upon. It was further stated that Exhibits C and G disclosed self-defence and that there is no factual admission therein that can translate to manslaughter.

The submission on the Appellant’s third issue is that Exhibits C and G were clear that the defence of self-defence availed the Appellant as it was the deceased that initiated an unprovoked attack on the Appellant and that, while the Appellant was defending himself, the cutlass inadvertently cut the deceased on the wrist. It was opined that the Appellant did not intend to kill the deceased. It was stated that the

lower Court was wrong to hold that the Appellant had ample opportunity to leave the scene but that he did not, because, he got into a retaliation fighting mode, as a result of which it did not uphold the defence of self-defence.

The Appellant argues under his fourth issue that the intervening factor of the piece of cloth tied around the wound sustained by the deceased, created reasonable doubt as to the cause of death which should have been resolved in favour of the Appellant. Section 317 of the Criminal Code, Cap. 38, Laws of Oyo State was referred to on the definition of manslaughter and it was stated, that to sustain a charge of manslaughter and prove the same beyond reasonable doubt, the Prosecution had to establish that the Appellant committed an unlawful act negligently, which act caused the unintentional death of the deceased. It was contended that the failure by the Prosecution to discharge the burden of proving the ingredients of the offence entitled the Appellant to a discharge and acquittal. The cases of NNAJIOFOR vs. THE PEOPLE OF LAGOS STATE (2015) LPELR-24666 (CA) at 24 and OMOREGIE vs. THE STATE LPELR-42466 (SC) at 22-23 were cited in support.

The Appellant maintained that, strong doubt as to the cause of death is furnished by the maker of Exhibit B, who said he used a piece of cloth to tie the injury sustained by the deceased and there is no evidence that the piece of cloth was sterile and free of contaminants. The prosecution’s evidence, it was asserted, did not eliminate the piece of cloth as a contributory factor in the death of the deceased. It was stated that it was speculative for the lower Court to have held that tying the piece of cloth was a remote possibility of fatality as it was not open to the Court to speculate. The case of THE STATE vs. AIBANGBEE (1988) 3 NWLR (PT 84) 548 at 573 was called in aid.

It was further stated that the lower Court held that no one could tell if death would have resulted if the piece of cloth had not been tied to the injury, thereby, showing doubt as to the cause of death. It was posited that in the absence of medical report, cause of death must be proved with certainty vide OFORLETE vs. THE STATE (2000) 12 NWLR (PT 681) 415; and that since the autopsy report, Exhibit F, was discountenanced by the lower Court, there is no definitive causative

proof of the cause of death. It was conclusively submitted that the doubt as to the cause of death ought to be resolved in favour of the Appellant. The cases of ORJI vs. THE STATE (2008) 10 NWLR (PT 1094) 31 at 50 and BOTU vs. THE STATE (2014) LPELR-23225 (CA) at 29-30 were referred to.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the Prosecution has the burden of proving the essential ingredients of the offence of manslaughter charged and referred to the cases of SABI vs. THE STATE (2011) 14 NWLR (PT 1268) 421 at 438, 439, EJEKA vs. THE STATE (2003) 8 NWLR (PT 819) 408, UYO vs. A-G BENDEL STATE (1986) 1 NWLR (PT 17) 418 and EGBEYOM vs. THE STATE (2000) 1 NWLR (PT 654) 559 on the essential ingredients to be proved. It was stated that the lower Court rightly held that the Prosecution proved the offence beyond reasonable doubt.

It was contended that the Appellant made confessional statements, which were sufficient to ground his conviction without more vide IDOKO vs. THE STATE (2018) 6 NWLR (PT 1614) [no page stated], DOGO vs. THE STATE (2013) 10 NWLR (PT 1361) 160 and NWACHUKWU vs. THE STATE (2002) 12 NWLR (PT 782)

It was opined that the Appellant, having resiled from the confessional statements, the lower Court applied the six-way test laid down in AKPAN vs. THE STATE (1992) 6 NWLR (PT 248) 439 at 460, and after due evaluation of the evidence convicted the Appellant since the circumstantial and direct evidence put the Appellant at the scene of the crime where he was engaged in a fight with the deceased. It was posited that the evidence of the PW3, the medical consultant, was clear that only a machete could have caused the death of the deceased.The three ways or methods of proving the commission of crime as set out in OMOREGIE vs. THE STATE (2017) LPELR-SC 334/2012 were referred to, and it was submitted that, the Prosecution proved its case by a combination of all the methods. It was contended that the lower Court properly evaluated the evidence and observed the demeanour of the witnesses, such that an appellate Court cannot interfere since the findings of the lower Court are not perverse. The cases of OLAKUNLE VS. THE STATE (2018) 6 NWLR (PT 1614) [no page stated] and MAIYAKI vs. THE STATE (2008) 15 NWLR (PT 1109) 173 were relied upon.

The Respondent asserted that the involvement of the Appellant in the killing of the deceased is accentuated by the statement made by one Hassan Mohammadu which was tendered as Exhibit B, as well as the testimony of the PW2 and the admission by the Appellant under cross examination that he fought with the deceased. It was maintained that though, the Appellant resiled from his confessional statements, Exhibits C and G, that the Court can still convict on the same provided it looks for facts outside the confession to test its veracity. The cases of NSOFOR vs. THE STATE (2002) 10 NWLR (PT 775) 279 at 289 and GIRA vs. THE STATE (1996) NWLR [no volume stated] (PT 443) 375 were cited in support.

Referring to Section 313 of the Criminal Code, Cap. 38, Vol. II, Laws of Oyo State of Nigeria, 2000, it was submitted that the tying of the cloth on the wound sustained by the deceased, did not raise any reasonable doubt as to the cause of death, since by the said provision the Appellant is still deemed to have killed the deceased. It was conclusively submitted that there is nothing in the Appellant’s submission which raises any reasonable doubt as to proof of the offence charged.

It was maintained that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and that the aggregation of facts and evidence before the lower Court does not raise any reasonable doubt or a doubt which a reasonable man or woman might entertain. The cases of ADELANI vs. THE STATE (2018) 5 NWLR (PT 1611) [no page stated], IGBA vs. THE STATE (2018) 6 NWLR (PT 1614) [no page stated] and JUA vs. THE STATE (2010) 4 NWLR (PT 1184) 217 were called in aid.

RESOLUTION
The facts on the cold printed records disclose that, there was an altercation between the Appellant and the deceased on the 9th day of October, 2013, during which a fight ensued; in the course of which the deceased was cut on the wrist with the machete which was used during the fight. The Appellant’s assertion is that he was not the one who cut the deceased with the machete and that he was engaged in self-defence since it was the deceased that attacked him. The deceased later died on the same day from the injury he sustained, consequent upon which the Appellant was charged with manslaughter.

It is abecedarian Law that in our adversarial criminal justice system which

is accusatorial, the Prosecution has the onus of proving the commission of the offence charged beyond reasonable doubt. See Section 135 of the Evidence Act.

Proof beyond reasonable doubt does not connote proof beyond all shadow of doubt. Proof beyond reasonable doubt also does not mean or import beyond any degree of certainty. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. See generally MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL ER 373, BAKARE vs. THE STATE (1987) LPELR (714) 1 at 12-13, THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380, ADEOYE vs. THE STATE (2011) LPELR (9091) 1 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41.

In proving the commission of a crime, three ways

or methods are available to the Prosecution. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and OLAOYE vs. THE STATE (2018) LPELR (43601) 1 at 13.

The lower Court rightly held that, there was no eyewitness evidence adduced by the Prosecution of the fight between the Appellant and the deceased. Concomitantly, as found by the lower Court, since the deceased was not alive to testify, it was only from the confessional statement of the Appellant, Exhibits C and G, the testimony of the Appellant in his defence and circumstantial evidence, that, what transpired between the Appellant and the deceased on the fateful day can be ascertained. The lower Court after due consideration and evaluation of the evidence held that the offence charged was proved beyond reasonable doubt and accordingly, convicted the Appellant, imposing a custodial sentence. The pith of the disceptation in this appeal is therefore whether the lower Court was

correct in its decision that the offence charged was proved beyond reasonable doubt, due regard being had to the defence of self-defence raised by the Appellant.

The Appellant was charged and convicted for manslaughter. Manslaughter is an unintentional killing of a human being. Such a killing is not pre-meditated but accidental, in the sense that it was not intentional. See EJEKA vs. THE STATE (2003) LPELR (1061) 1 at 16, POPOOLA vs. THE STATE (2018) LPELR (43853) 1 at 21 and JOHN vs. THE STATE (2017) LPELR (48039) 1 at 51-52.

10 SC 69 or (1974) LPELR (3066) 1 at 13, FAMAKINWA vs. THE STATE (2016) LPELR (40104) 1 (SC), NWABUEZE vs. THE PEOPLE OF LAGOS STATE (2018) LPELR (44113) 1 at 17-18 and JOHN vs. THE STATE (supra) at 38-39.

In holding that the offence charged was proved beyond reasonable doubt, the lower Court relied on the Appellant’s confessional statements, Exhibits C and G, which after applying the requisite tests to ascertain the veracity of the confession, it relied on the testimony of the PW2 and PW4 (the IPOs) as well as the testimony of the Appellant himself under cross examination to hold that the confession

was possible. By all odds, there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A.G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387.

that the denial by an accused person that he did not make a statement or the retraction or resilement from the confessional statement does not render the statement inadmissible in evidence: ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111 and OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement provided the Court first applies the test for determining the veracity or otherwise of the confessional statement by seeking any other evidence, however slight, or circumstances which make it probable that the confession is true. See HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93, R vs. SYKES (1913) 1 Cr. App. R. 233, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81 and UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188-189.

But, did the Appellant retracted the confessional statements? I think not! I have insightfully considered the Appellant’s confessional statements, Exhibits C and G, alongside the Appellant’s testimony in Court which is at pages 66-70 of the Records; and rather than be a retraction, the testimony in

Court materially affirmed the confessional statements. I will demonstrate. The Appellant in his confessional statements referred to the fight between him and the deceased and that the fight involved the use of a cutlass; this is affirmed by the Appellant’s evidence in chief at pages 67-68 of the Records. In the confessional statement, Exhibit C, the Appellant stated that during the fight that ensued with the deceased, the cutlass of the deceased fell off his hand and “I did not know that I had cut him on the hand.” In Exhibit G, after alluding to the fight with the deceased, the Appellant stated: “I did not know that he was injured. I did not intend to kill him but it just happened.”

In his testimony, the Appellant stated as follows at page 68 of the Records:
“I am not the one that cut Mohamodu (deceased) right hand but may be it happened when we were dragging the cutlass in the struggle and but [sic] took to hit me.”

Under cross examination, the Appellant testified as follows at page 70 of the Records:
“I said the cutlass in Mohamodu’s hand fell down. Yes we both were struggling with the

cutlass. My own cutlass too was on the ground. I said that it was not my own cutlass but that Mohamodu’s cutlass may have cut him (Mohamodu) on the wrist when we were both struggling with it.”

for the Court to seek other evidence, be it slight, of circumstances which make it probable that the confession is true. Replete in the evidence is the fact that the deceased was cut/injured on the wrist; the testimony of the medical doctor, PW3, at page 43 of the Records is that only a machete cut could have caused the injury that the deceased sustained. The evidence reveals that, in the fight, a cutlass and/or machete was used and that the fight was between the Appellant and the deceased. Undoubtedly, there is glut of other evidence outside the confessional statements which corroborates the confession, shows that the same is true and that the Appellant, not only had the opportunity of committing the offence, but that his confession is possible. Even though arguable, if the confessional statements were retracted, the lower Court was correct when after applying the six-way test, it relied on the confessional statements to convict.

The Appellant has made a kerfuffle as to whether the cause of death was established beyond reasonable doubt, contending that the piece of cloth, which was stated in Exhibit B, made by a person who was not called as a witness, may

have been contaminated and could have been a contributory factor in the death of the deceased. It is rudimentary Law that the evidence which a Court is to act upon and ascribe probative value to is legally admissible credible evidence: ONAH vs. THE STATE (1985) LPELR (2668) 1 at 14-15 and BUKOLA vs. THE STATE (2017) LPELR (43747) 1 at 16.

The only allusion in the evidence that the injury sustained by the deceased was tied with a piece of cloth is in Exhibit B, the extra-judicial statement of one Hassan Mohammadu. The said Hassan Mohammadu was not called as a witness. It is hornbook Law that the extra-judicial statement made by a potential witness and who was not called to testify in Court cannot be accorded any probative or evidential value. The veracity of the contents of the said Exhibit B has not been proved since the maker of the statement was not called as a witness. The statement cannot therefore be used as proof of the truth that a piece of cloth was used to tie the injury sustained by the deceased. See ADISA vs. THE STATE (1964) LPELR (25197) 1 at 6-7, KASA vs. THE STATE (1994) LPELR (1671) 1 at 18, UGBOGBO vs. THE STATE (2016) LPELR (42225) 1 at

18-23, AGBANIMU vs. FRN (2018) LPELR (43924) 1 at 41-43, PAUL vs. COP (2021) LPELR (52489) 1 at 93 and AFOLABI vs. THE STATE (2021) LPELR (53501) 1 at 26-27. Furthermore, the Appellant’s contention in this regard is an invitation for the Court to speculate as to whether the piece of cloth is sterile or contaminated as there is no evidence in that regard, since the maker of the said Exhibit B was not called as a witness. As rightly submitted by the Appellant, speculation has no place in a criminal trial: THE STATE vs. AIBANGBEE (supra). Accordingly, there is no legally admissible, credible evidence which casts any doubt on the cause of death of the deceased which occurred on the same day that he was cut with a cutlass, a lethal weapon, while engaged in a fight with the Appellant. It is settled Law that where a person is attacked with a lethal weapon and he dies on the spot or shortly afterwards, it is reasonable to infer that the injury inflicted on him caused the death. See EDOHO vs. THE STATE (2010) LPELR (1015) 1 at 18-19, ALI vs. THE STATE (2015) LPELR (24711) 1 (SC), BEN vs. THE STATE (2006) 16 NWLR (PT 1006) 582, MUHAMMAD vs. THE STATE (2017)

LPELR (42098) 1 at 23-26 and OMILADE vs. THE STATE OF LAGOS (2020) LPELR (51807) 1 at 22-23. Therefore, the fact that the lower Court discountenanced the autopsy report, Exhibit F, for not bearing the correct name of the deceased, does not detract from the fact that the cause of death was proved since it can be properly inferred that the wound inflicted on the deceased, which resulted in his death on the same day of the injury is the cause of death.

In splice, the evidence adduced by the Prosecution established that it was the unlawful act of the Appellant that caused the death of the deceased. This is established by the causal link of the deceased having been cut with a cutlass while fighting with the Appellant and having died from the injury sustained on the same day:JOHN vs. THE STATE (supra) at 38-39. It now remains to consider the Appellant’s reliance on the defence of self-defence, which if established will completely absolve and exonerate the Appellant from the offence of manslaughter.

Self-defence, as a defence, simply means that the accused person did the alleged act while in the process of defending either himself or some other

person and that he had no premeditated intention to kill his attacker or to cause him grievous bodily harm. See BRAIDE vs. THE STATE (1997) LPELR (800) 1 at 13, AFOSI vs. THE STATE (2013) LPELR (20751) 1 at 37-38, SULE vs. THE STATE (2009) 8 SCM 177 and FULANI M vs. THE STATE (2018) LPELR (45195) 1 at 31-36.

For a plea of self-defence to succeed, the following conditions must co-exist:
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 apparent as to create honest belief of an existing necessity.
3. There must be no safe or reasonable mode of escape by retreat.
4. There must have been a necessity for taking life.
See OMOREGIE vs. THE STATE (2008) 18 NWLR (PT 1119) 464, ODUNLAMI vs. THE NIGERIAN NAVY (2013) LPELR (20701) 1 at 50-51, OCHANI vs. THE STATE (2017) LPELR (42352) 1 at 16-17 and EGHEGHE vs. THE STATE (2020) LPELR (50552) 1 at 17-18.

The lower Court considered the defence of self-defence at pages 145-149 of the Records and found the same unavailing. Hear the lower Court at pages 147-149 of the

Records:
“Now, the question to ask first is, whether the accused person herein was of the reasonable belief that his own life was at stake and in utmost danger with no other viable option of saving it than to strike the deceased with a Cutlass/Matchet [sic] – particularly, having been admonished by some people that he (the accused person) should leave. Since the deceased was already intoxicated/drunk in the 1st extra judicial statement i.e the one dated 10/10/2013, this was the way it was stated.
‘People around said I should go my way. As I was leaving Mohammed kept on insulting there were three boys among whom was Hassan who told Mohammed to stop insulting me. I returned back towards Mohammed and discovered that he was with Cutlass. I asked him why he was doing these things and he said he was ready to fight. I drew out my Cutlass and fight ensued.’
In the other extra-judicial statement i.e the one dated 14/10/2013 it stated ‘… I thought it was a joke, but before I could know, the deceased ran inside his room and brought out Cutlass to attack me. I was asked to leave the compound. But somewhere along the way he

(deceased) ran after me and attacked. He attempted three times to cut me with his matchet [sic] but he did not get me. In attempt to defend myself, I also cut him with my Matchet [sic] on his hand and he ran away….’
The foregoing in my view do reflect that the accused person could have left the scene – there was ample opportunity for him to have left the scene when the people around told him to leave – that was an option I believe would if it had been taken probably have averted the tragic incident. He had an opportunity to flee that scene, but because he claimed he was being insulted so much, he had to walk back towards the deceased when he could have ignored his insult, it appears from his Statements that he actually did start leaving – on his way away and from the deceased – but for the insult which the drunk deceased was hurling at him – I believe there was safe or reasonable mode of escape or retreat. I believe what happened was that after the deceased attempt three times to hit the accused person with his Matchet [sic]/Cutlass, the accused person got into a retaliation mode and of course fight ensued this in my

view therefore has removed him from the self-defence mode to a retaliation fighting mode and in the process of retaliation, he cut the deceased’s wrist fatally, he cannot in my view plead self-defence Spontaneity to an unprovoked attack – is not present in this instance.”

The lower Court properly evaluated the evidence in this regard and made findings of facts which are unassailable. Additionally, in order for self-defence to avail, there must be present an impending peril to life or of great bodily harm. From the evidence, the danger posed to the Appellant is the attack on him by the machete/cutlass-wielding deceased, which machete/cutlass, from the statement of the Appellant, Exhibit C, and his testimony in Court (page 67 of the Records), fell on the ground. The machete/cutlass having fallen on the ground, the present impending peril to life or of great bodily harm posed to the Appellant was removed. For the defence of the right to self-defence to avail, an accused person and exclude his criminal responsibility, there must be evidence showing that the accused person at the material moment was faced with imminent apprehension of death or grievous hurt

from his attacker: UWAGBOE vs THE STATE (2008) 12 NWLR (PT 1102) 621 at 639 and ADEYEYE vs. THE STATE (2013) 11 NWLR (PT 1364) 47 at 70. In the instant case, the machete/cutlass which the Appellant said the deceased was using to attack him having fallen to the ground, the Appellant was no longer exposed to any present or impending peril to his life in order to have the benefit of the defence or self-defence. See THE STATE vs. BAIYEWUNMI (1980) 1 NCR 183, EDOKO vs. THE STATE (2015) LPELR (24402) 1 at 30-31 and DAVID vs. CP, PLATEAU STATE COMMAND (2018) LPELR (44911) 1 at 5-7. The lower Court was therefore correct in its finding that the Appellant cannot rely on the defence of self-defence.

In conflation, it is indubitable that the issue for determination must be resolved against the Appellant. The lower Court rightly held that the prosecution proved its case beyond reasonable doubt and correctly convicted the Appellant as charged. The appeal is bereft of merit. It accordingly fails and it is hereby dismissed. The decision of the lower Court embodying the conviction and sentence imposed on the Appellant is hereby affirmed.

JIMI OLUKAYODE BADA, J.C.A.: I read before now, the lead judgment of my Lord, UGOCHUKWU ANTHONY OGAKWU, J.C.A., just delivered and I agree with my Lord’s reasoning and conclusion that the Appeal lacks merit.

Having also read the Record of Appeal as well as the Briefs filed on behalf of both parties, I am of the view that the appeal should be dismissed and it is so ordered.

FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

I agree with his Lordship and adopt his profound reasoning and conclusion reached therein as mine.

The Law is trite that the plea of self-defence where successfully established is a complete answer to a charge of murder or manslaughter. Whether the defence will succeed or not however depends on the facts of each case. The defence presupposes that an accused person unlawfully assaulted the other person in the course of preserving himself from death or grievous harm.

To be entitled to the defence, an accused person must show that he was not ready to fight but that the deceased left him with no other option than to kill him to

preserve his own life. See FAMAKINWA VS STATE (2016) 11 NWLR (Pt. 1524) 538, STEPHEN VS STATE (1986) 5 NWLR (Pt. 46) 978 and UWAEKWEGHINYA VS THE STATE (2005) 9 NWLR (Pt. 930) 227.

In the instant appeal, it was established that the victim is dead and that the Appellant inflicted a cut on his wrist with a cutlass. The Appellant in his extra judicial statement dated 10/10/2013, stated that, he acquiesced to the plea of people urging him to leave the scene of the fight but that the deceased continued to insult him and said he was ready to fight. It was at this point that he (the Appellant) drew out his cutlass and a fight ensued.

The Appellant had the opportunity to leave the scene of the fight and was about to do so. He however turned back because, he was being insulted by the deceased.

From the evidence on record, it is clear beyond any peradventure that the Appellant brought out his cutlass to show the deceased that he was also ready for a fight. His act was definitely not in self-defence. The defence of self-defence would therefore not avail him.

It is for the above and fuller reasons contained in the lead judgment that I also dismiss this appeal and affirm the judgement of the trial Court.

Appearances:

A. Fasogbon, Esq. with him, Dotun Akinsanmi, Esq. For Appellant(s)

Kayode A. Babalola, Esq., (Asst. Director, Ministry of Justice, Oyo State) For Respondent(s)