OKECHUKWU OKAFOR v. THE STATE (2017)

OKECHUKWU OKAFOR v. THE STATE

(2017)LCN/10333(CA)

In The Court of Appeal of Nigeria

On Monday, the 14th day of August, 2017

CA/OW/37C/2016

RATIO

CRIMINAL LAW AND PROCEDURE – SELF-DEFENCE/PROVOCATION: THE DISTINCTION OF THE EFFECT OF THE DEFENCE OF SELF-DEFENCE AND THAT OF PROVOCATION

I am of the considered view that the Respondent would appear to appreciate the difference between the defence of self-defence and that of provocation much more than the Appellant given the manner in which the Appellant couched its sole issue as the Appellant would appear to be of the view that a successful defence of self-defence can reduce a conviction for the offence of murder to manslaughter. The position of the law is to the effect that the defence of self-defence where it succeeds, totally absolves an accused person of the unlawful killing of the deceased person in a charge of murder with a verdict of not guilty being entered; while the defence of provocation on the other hand only reduces the offence of the murder of a deceased person, to one of manslaughter. See the cases of LAOYE V. THE STATE (1985) 2 NSCC 1251; and AJUNWA V. THE STATE (1988) 9 SC 110 amongst many others. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CRIMINAL LAW AND PROCEDURE – DEFENCE OF THE ACCUSED: THE DUTY OF THE COURT TO CONDIDER EVERY DEFENCE AVAILABLE TO THE ACCUSED PERSON

I will however still give a consideration to the question of as to whether or not the defence of self-defence avails the Appellant having regard to the position of the law to the effect that the adjudication process in our adversarial system of administration of justice demands that every defence available to the accused on the evidence and facts before the Court must be considered by the Court. See the case of NWUZOKE V. THE STATE (1988) LPELR – 2135 (SC), (1988) NWLR (Pt. 72) 529. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CRIMINAL LAW AND PROCEDURE – SELF-DEFENCE: CIRCUMSTANCES IN WHICH THE DEFENCE OF SELF-DEFENCE WILL NOT AVAIL AN ACCUSED PERSON

The 1963 Criminal Code of Eastern Nigeria, under which the Appellant was charged and convicted for murder, contains provisions dealing with ‘self-defence against unprovoked assault’; ‘self-defence against provoked assault’ and ‘aiding in self-defence’. The provisions are clearly similar to those in Sections 286, 287 and 288 of the Criminal Code as contained in Aguda’s Book titled The Criminal Law and Procedure of the Southern States of Nigeria (Third Edition). Sections 286 and 287 therein are also ipsissima verba with those in/of Sections 223 and 224 of the Criminal Code of the then Western State that were considered by the Supreme Court in the LAOYE’s case (supra). Re-produced hereunder is what Nnamani, JSC; said in the leading judgment of the Court in the said case: –

‘Now to self defence. As earlier stated I have no doubt in my mind that the evidence of the appellant raised a strong defence of self defence in his favour. The applicable laws are Sections 223 and 224 of the Criminal Code of Western Nigeria which correspond to the provisions of Sections 286 and 287 of the Criminal Code. Can the appellant on that evidence fall within any of those two sections’ In my view Section 223 cannot avail him. That section deals with the case in which the accused is unlawfully assaulted and has not provoked the assault. The evidence is that it was indeed the appellant who provoked the deceased to assault him. I think that it is rather Section 224 which applies to the facts of this case. That section is in these terms:

‘224. When a person has unlawfully assaulted another or has provoked an assault from another and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm or to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.

This protection does not extend to a case in which the person using force, which causes death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person: not to a case in which the person using force which causes death or grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose; nor, in either case, unless before such necessity arose the person using force declined further conflict, and quitted it or retreated from it as far as was practicable.’

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In ordinary language the law would excuse a killing if the killer had reasonable grounds for believing that his own life was in danger and that he had to kill in order to preserve it. From the authorities, it is settled that the belief of the prisoner in such a case would be tested on objective grounds. In other words, the test is an objective one. Several factors would necessarily arise in determining this objective belief. For instance the quality of the force used on the deceased must be the same as that with which the prisoner defends himself. In Regina v Josiah Onyeamaizu 1958 N.R.N.L.R. 93 at 95 Brown, C.J. put it this way:

‘It is not open to an abnormally nervous or excitable person who on being assailed by a comparatively minor assault or an assault of any nature which falls short of that which is described in the section, unreasonably believes that he is in danger of death or grievous harm, such a person may hope for clemency from other quarters, he cannot expect it from the law. It would be surprising and indeed dangerous if it were otherwise. The legal right to kill in self defence cannot be made to depend upon the temperament, nervous, or courageous, robust or weak, phlegmatic or excitable of the individual killer ………The law insists upon one standard; it is the standard of the reasonable man’.

In R. v Mclnnes (1971) 3 All E.R. 295 the defence could not avail a prisoner who killed an unarmed person by stabbing him with a dagger. The prisoner’s defence lay only in these words –

‘One of them jumped on my back, someone gave me a knife and I let him have it. We all scampered.

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This is perhaps an appropriate stage to deal with the issue of excessive force on the basis of which the trial Court rejected the defence of self defence. It was there contended that as against the minor stab wounds the appellant received on his leg and shoulder he dealt the deceased 5 serious stab wounds from which he died. Excessive force has been described as force which is more than a reasonable man would consider necessary. To my mind, the degree of force used is only relevant while one is considering the circumstances of the encounter so as to determine whether there were reasonable grounds for the prisoner’s belief that his life is in danger. Once it is agreed that there were such grounds, the amount of force used by the prisoner to preserve his own life becomes immaterial. In a fight to the death, it is only to be expected that once the prisoner believes on reasonable grounds that his life is In danger he would go all out to preserve his life, and that may entail making sure that the deceased is dead beyond any question. Lord Justice Edmund Davies dealing on excessive force, in the Mclnnes case quoted with approval a passage in the judgment of Lord Morris of Borch-of-Gent in Palmer v Reginam (1971) 1 All E.R. 1077 P.C. where he said:

There are no prescribed words which must be employed in or adopted in a summing up. All that is needed is a clear exposition in relation to the particular facts of the case of the conception of necessary self defence. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicely the exact measure of his necessary defensive action. (Italics mine).

Section 224 of the Criminal Code of Western Nigeria stipulates that the person using force declines further conflict or retreats as far as is possible.

Again, if I may refer to Mclnne which I think espouses principles of law similar to ours on this issue,

it is not as we understand it the law that a person threatened must take to his heels and run in the dramatic way suggested by counsel for the appellant but what is necessary is that he should demonstrate by his action that he does not want to fight. He must demonstrate that he is prepared to temporarise and disengage and perhaps to make some physical withdrawal at p.300.

The appellant certainly did not retreat in the literal sense. From his testimony he backed away and fell. He also temporised. When he first struck the deceased it was on the left shoulder in an attempt to make him drop his knife. Based on the principles of law discussed above, I am of the view that the evidence led by the appellant which I have set down at various stages in this judgment put him squarely within the provisions of Section 224 of the Criminal Code of Western Nigeria. It seems to me that there were reasonable grounds for him to believe that his life was in danger. The deceased armed with a knife lunged at him three times, and it was only on the third occasion that he drew his own knife. Furthermore, having put up the defence it was not for the appellant to establish it. It is settled law that in cases in which the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never on the accused to establish this defence any more than it is for him to establish provocation or any other defence other than insanity. See Chan Kau Alias Chan Kai and The Queen (1955) I A.C. 206; R v Lobell (1957) I Q.B. 547 or 1957 I All E.R. 734. The prosecution did not discharge that onus in this case. Therefore, in my view, both the trial Court and the Court of Appeal erred in not allowing the appellant to avail himself of a defence which on the evidence and law was clearly available to him. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

I am of the considered view, that it is clear as crystal that given the eyewitness account of what transpired at the scene of the crime as adduced by the prosecution through PW1, and which shows that the Appellant deliberately or intentionally attacked the deceased with a matchet when he was lying on the ground after being beaten or flogged (and which evidence the lower Court found to be credible), it would have been a perverse finding if the said Court had found that the defence of self-defence availed the Appellant. Indeed, I am also of the considered view that even if the lower Court had been inclined to accept the account of the Appellant as to how the deceased came to sustain matchet wounds, the lower Court was seriously handicapped in this regard, given the evidence of DW2 on page 76 of the record and which goes to show that it was after the Appellant had disarmed or dispossessed the deceased of the matchet with which the deceased purportedly attacked the Appellant, that the Appellant retaliated by giving the deceased a matchet cut on the head. An act of retaliation in the circumstances as narrated by DW2, in my considered view also rendered the defence of self-defence unavailable to the Appellant. Flowing from all that has been said is that the lower Court was right in its finding that the defence of self-defence was not available to the Appellant. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CRIMINAL LAW AND PROCEDURE – DEFENCE OF PROVOCATION: THE PRINCIPLE GUIDING THE DEFENCE OF PROVOCATION

The lower Court apparently having considered the defence of self-defence as the defence which the evidence before it raised, out of abundant caution considered the defence of provocation. The lower Court did not find any provocative act on the part deceased. The Court also stated that even any fancied over (which I take to be that even if there had been any act of provocation on the part of the deceased), the defence of provocation must fail inasmuch as the perquisites of the defence cannot be said to exist having regard to the evidence before it. The conclusion of the lower Court in this regard in my considered view, cannot be faulted against the backdrop of the decision of the Supreme Court as far back as 1976 in the case of URAKU V. THE STATE (1976) LPELR – 3424 (SC),(1976) 6 SC 128; wherein the said Court stated thus: –

Provocation in law consists mainly of three elements:

(1) The act of provocation;

(2) The loss of self control both actual and reasonable; and

(3) Retaliation proportionate to the provocation.

The three elements are enshrined in our law Section 283 of the Criminal Code Cap. 30 Laws of Eastern Nigeria 1963 which reads:

The term provocation used with reference to an offence of which an assault is an element, includes except as hereinafter stated, any wrongful act or insult of such a nature as to be likely when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered.

This defence of provocation (to reduce a charge of murder to manslaughter) is made available by Section 318 of the Criminal Code which reads:

“When a person who unlawfully kills another in circumstances which but for this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time to cool, he is guilty of manslaughter only.”

It has received detailed analysis in the case of Chukwuobaji v. The State (1965) 1 All NLR 269, where at p. 274 Ademola, CJ.N., delivering the judgment of the Supreme Court, said:

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To avail himself of the defence in a charge of murder under Section 318 of the Criminal Code the accused must have done the act for which he is charged (i) in the heat of passions (ii) this must have been caused by sudden provocation and (iii) the act must have been committed before there is time for his passion to cool. There can be no doubt that the attitude of the Nigerian Courts has been to interpret Sections 283 and 318 of the Criminal Code as impliedly including the mode of resentment or in other words, that the retaliation must be proportionate to the provocation offered. In this connection and in consonance with this interpretation by the Nigerian Courts, the doctrine has developed of the behaviour of the average man in the community to which he belongs. See R v. John Okoro (1942) 16 NLR 63 at pp. 65 and 66 and R v. James Adekanmi (1943) 17 NLR 99 at pp. 101 and 102.

And recently, Coker, J.S.C., rationally restated the basis of the defence of provocation when he said in the case of Akang v. The State (1971) 1 All NLR 47 at p. 49:

“Provocation which reduces what would otherwise amount to murder to manslaughter is a legal concept made up of a number of elements which must co-exist. It is of paramount importance in the consideration of this concept that the act held out as a natural and justifiable action of the provoked person be done not in self revenge but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the circumstances of the occasion (See Vincent Chukwu v. The State 1966 NLR 274.”

We were unable to find any shred of evidence of any act amounting to provocation offered by the deceased, but find rather in the Appellant, re-determination, instead of sudden temporary loss of self control, and self-induced irrational behaviour. We concluded that the learned trial Judge arrived at the proper decision on the evidence before him and dismissed the appeal. Suffice it to say that given the admission of the Appellant that he gave the deceased matchet cuts in revenge and which as I had earlier stated was confirmed as it were by DW2 that it was after the Appellant had collected the matchet from the deceased that the Appellant retaliated by giving the deceased a matchet cut on the head, the Appellant had by himself removed the defence of provocation from the equation or from the table. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

OKECHUKWU OKAFOR Appellant(s)

AND

THE STATE Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 23/9/2015 by the High Court of Imo State sitting in the Etiti Judicial Division presided over by Hon. Justice E.O. Agada (hereafter to be simply referred to as ?the lower Court? and ?the learned trial Judge? respectively).

Both the Appellant as the 1st accused person and one Beatrice Ihuoma(his mother) as the 2nd accused person, were charged with the murder of one George Okafor, contrary to Section 319(1) of the Criminal Code, Cap. 30, Vol. 2 of the Laws of Eastern Nigeria, 1963 as applicable to Imo State in the Information filed before the lower Court. George Okafor (hereafter to be simply referred to as ?the deceased?) was the 1st accused person?s Uncle and also brother-in-law to the 2nd accused person. Both accused persons pleaded not guilty to the charge preferred against them on 19/3/2012. After evaluating the totality of the evidence adduced before it by the prosecution and the accused persons, the lower Court found the prosecution not to have proved its case beyond

reasonable doubt against the 2nd accused person, and consequently ?discharged and acquitted? her; but having found the prosecution to have proved its case beyond reasonable doubt against the Appellant, the said Court in its judgment, found him guilty of the offence of murder as charged and duly sentenced him to death by hanging as stipulated by the enactment under which he was charged and prosecuted.

In the instant appeal, which was commenced by a notice of appeal dated 26/11/2015 and filed at the registry of the lower Court on 30/11/2015, the Appellant is appealing against ?that part that convicted the appellant of murder? and seeks that this Court; allows the appeal and his conviction for the offence of murder be set aside.

The appeal was entertained on 1/6/2017 as parties before then, had filed and exchanged their respective briefs of argument and the positions of the record of appeal and the said briefs having been regularised on the said 1/6/2017.

?Appellant?s brief of argument dated 31/5/2016 and filed on same date but deemed as properly filed on 1/6/2017 was adopted and relied upon by S. Amadi-Obi,

learned counsel for the Appellant (who settled the same) in urging the Court to allow the appeal and reduce the conviction of the Appellant from murder to manslaughter and sentence him to time already served.

Respondent?s brief of argument dated 28/2/2017 and filed on 10/3/2017 but deemed as properly filed on 1/6/2017 and which was jointly settled by J.C. Ibe and I.C. Ibeawuchi, (both being Assistant Directors of Public Prosecutions, Imo State) was adopted and relied on by I.C. Ibeawuchi in urging the Court to dismiss the appeal.

The notice of appeal filed by the Appellant contains three grounds and a sole issue was formulated for the determination of the appeal in the Appellant?s brief of argument from the said grounds of appeal. Re-produced hereunder are the grounds of appeal and the sole issue formulated by the Appellant: –
?GROUND ONE
The learned trial Judge erred in law when he held that
?in this case I do not see any provocative act of the deceased and even any fancied over would have failed to satisfy the three elements stipulated in Edoho Supra thus the defence of provocation fails.?
GROUND TWO

The learned trial Judge erred in law when he held that the defence of self defence was not available to the appellant.
GROUND THREE
The judgment is against the weight of evidence.?

The issue reads thus: –
?Whether the Appellant is entitled to the defence of provocation and self-defence to the extent that the crime of murder can be reduced to manslaughter.?

In its brief of argument, the Respondent having initially stated that it was adopting the lone issue formulated by the Appellant but with necessary reconstruction, ended up formulating the issue on which the appeal should be determined as: –
?Whether having regard to the totality of evidence led at the trial of this case by both the prosecution and the defence can it be said that the Appellant is entitled to the defence of provocation to the extent that his conviction for murder can be reduced to manslaughter

couched its sole issue as the Appellant would appear to be of the view that a successful defence of self-defence can reduce a conviction for the offence of murder to manslaughter. The position of the law is to the effect that the defence of self-defence where it succeeds, totally absolves an accused person of the unlawful killing of the deceased person in a charge of murder with a verdict of not guilty being entered; while the defence of provocation on the other hand only reduces the offence of the murder of a deceased person, to one of manslaughter. See the cases of LAOYE V. THE STATE (1985) 2 NSCC 1251; and AJUNWA V. THE STATE (1988) 9 SC 110 amongst many others.

Ground 3 in the notice of appeal which is supposed to be an omnibus ground of appeal but which has not been framed or couched in line with age long format in respect of an omnibus ground of appeal in a criminal appeal, is hereby struck out without further ado. The law is settled that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case and that the words ?weight of evidence? are not available in criminal appeals; hence an omnibus ground in a

criminal appeal is to be couched thus: ?the verdict is unreasonable or cannot be supported having regard to the evidence?. See the cases of ALADESURU V. THE QUEEN (1956) A.C. 49; ADIO V. THE STATE (1986) LPELR ? 183 (SC), (1986) NWLR (Pt. 24) 581; OBASI V. STATE (1992) 8 NWLR (Pt. 260) 383; and ADELUSOLA V. AKINDE (2004) 12 NWLR (Pt. 887) 295. The appeal will therefore be determined on the issue formulated for its determination by the Respondent as it is more appropriate given the fact that what the Appellant wants is the reduction of his conviction from murder to that of manslaughter.

Dwelling on the sole issue for the determination of the appeal in his brief of argument, the Appellant made it clear that all he is concerned with, is the defence of provocation. This is borne out of the conclusion as stated in paragraph 6 on page 10 of the said brief whereat he stated thus: –
?May we therefore urge my lords to reduce the crime from murder to manslaughter and reduce the sentence to a short prison term as the level of provocation was indeed high, and the Appellant has been in police and prison custody since

23/3/2011.?

And as if to lend credence to this view, is the fact that it is only in paragraph 5.10 out of the argument spanning paragraphs 5.01 ? 5.24 on pages 2 ? 10 of his brief of argument that the Appellant made allusion to the defence of self-defence and even at that, the allusion made to the defence, just came up in that it was mentioned in the case of Ada v. State (2008) 13 NWLR (Pt. 1103) page 149, cited by the Appellant, while arguing on the wrongness of his conviction for murder as a result of the improper consideration of the defence of provocation by the lower Court in the instant case.

In my considered view, the Appellant in other words, would appear to have made the consideration by this Court of the question as to whether or not the defence of self-defence was available to him unnecessary. Maybe this is what informed the reconstruction by the Respondent in its brief of argument, of the issue formulated by the Appellant for the determination of the appeal. Be that as it may.

?I will however still give a consideration to the question of as to whether or not the defence of self-defence avails the Appellant

having regard to the position of the law to the effect that the adjudication process in our adversarial system of administration of justice demands that every defence available to the accused on the evidence and facts before the Court must be considered by the Court. See the case of NWUZOKE V. THE STATE (1988) LPELR ? 2135 (SC), (1988) NWLR (Pt. 72) 529.

The judgment of the lower Court spans pages 110 ? 129 of the record. I am of the considered view that it is clear therein, that the lower Court based on the facts it accepted, gave appropriate consideration to the question as to whether the defence of self-defence was available to the Appellant. The lower Court did this on page 123 of the record.

The availability of a defence to an accused person in respect of a charge preferred against him in my consider view only comes into the fore because the prosecution has at least prima facie, proved the commission of the offence by the accused person in that the prosecution has established the ingredients of the offence charged having regard to the evidence accepted by the Court. See the cases ofOTEKI V. A-G, BENDEL STATE (1986) LPELR ?

2823 (SC), (1986) 2 NWLR (Pt. 24) 648; and BAKARE V. THE STATE (1987) LPELR ? 714 (SC) amongst many others. Against this backdrop there is actually no need in this appeal to embark on an inquiry as to whether the ingredients of the offence of murder were established to the degree put in place by the law.

In the instant case, the lower Court relying on the evidence of PW1 and PW5 (to which the said Court ascribed credibility and which primarily is its bounden duty), had no difficulty in arriving at the conclusion that the Appellant ?killed the deceased with the full intention to kill him or with knowledge that death would result from his dastardly attack on him?. The attack, having regard to evidence which the lower Court accepted, was carried out by the use of matchet on the deceased by the Appellant. The Appellant would also appear to have accepted these findings as correct, given the fact that he has by his complaint that the lower Court did not consider the availability of the defence of self-defence (in passing as it were) to him, necessarily conceded that he killed the deceased.

?The 1963 Criminal Code of Eastern Nigeria,

under which the Appellant was charged and convicted for murder, contains provisions dealing with ?self-defence against unprovoked assault?; ?self-defence against provoked assault? and ?aiding in self-defence?. The provisions are clearly similar to those in Sections 286, 287 and 288 of the Criminal Code as contained in Aguda?s Book titled The Criminal Law and Procedure of the Southern States of Nigeria (Third Edition). Sections 286 and 287 therein are also ipsissima verba with those in/of Sections 223 and 224 of the Criminal Code of the then Western State that were considered by the Supreme Court in the LAOYE?S case (supra). Re-produced hereunder is what Nnamani, JSC; said in the leading judgment of the Court in the said case: –
?Now to self defence. As earlier stated I have no doubt in my mind that the evidence of the appellant raised a strong defence of self defence in his favour. The applicable laws are Sections 223 and 224 of the Criminal Code of Western Nigeria which correspond to the provisions of Sections 286 and 287 of the Criminal Code. Can the appellant on that evidence fall within any of

those two sections? In my view Section 223 cannot avail him. That section deals with the case in which the accused is unlawfully assaulted and has not provoked the assault. The evidence is that it was indeed the appellant who provoked the deceased to assault him. I think that it is rather Section 224 which applies to the facts of this case. That section is in these terms:
?224. When a person has unlawfully assaulted another or has provoked an assault from another and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm or to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.
This protection does not extend to a case in which the person using force, which causes death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person: not to a case in which the person using force which causes death or grievous

harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose; nor, in either case, unless before such necessity arose the person using force declined further conflict, and quitted it or retreated from it as far as was practicable.?
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which is described in the section, unreasonably believes that he is in danger of death or grievous harm, such a person may hope for clemency from other quarters, he cannot expect it from the law. It would be surprising and indeed dangerous if it were otherwise. The legal right to kill in self defence cannot be made to depend upon the temperament, nervous, or courageous, robust or weak, phlegmatic or excitable of the individual killer ………The law insists upon one standard; it is the standard of the reasonable man?.
In R. v Mclnnes (1971) 3 All E.R. 295 the defence could not avail a prisoner who killed an unarmed person by stabbing him with a dagger. The prisoner?s defence lay only in these words –
?One of them jumped on my back, someone gave me a knife and I let him have it. We all scampered?.
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dealt the deceased 5 serious stab wounds from which he died. Excessive force has been described as force which is more than a reasonable man would consider necessary. To my mind, the degree of force used is only relevant while one is considering the circumstances of the encounter so as to determine whether there were reasonable grounds for the prisoner?s belief that his life is in danger. Once it is agreed that there were such grounds, the amount of force used by the prisoner to preserve his own life becomes immaterial. In a fight to the death, it is only to be expected that once the prisoner believes on reasonable grounds that his life is In danger he would go all out to preserve his life, and that may entail making sure that the deceased is dead beyond any question. Lord Justice Edmund Davies dealing on excessive force, in the Mclnnes case quoted with approval a passage in the judgment of Lord Morris of Borch-of-Gent in Palmer v Reginam (1971) 1 All E.R. 1077 P.C. where he said:
?There are no prescribed words which must be employed in or adopted in a summing up. All that is needed is a clear exposition in relation to the particular facts of

the case of the conception of necessary self defence. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicely the exact measure of his necessary defensive action?. (Italics mine).
Section 224 of the Criminal Code of Western Nigeria stipulates that the person using force declines further conflict or retreats as far as is possible.
Again if I may refer to Mclnne which I think espouses principles of law similar to ours on this issue,
?it is not as we understand it the law that a person threatened must take to his heels and run in the dramatic way suggested by counsel for the appellant but what is necessary is that he should demonstrate by his action that he does not want to fight. He must demonstrate that he is prepared to temporarise and disengage and perhaps to make some physical withdrawal? at p.300.
The appellant certainly did not retreat in the literal sense. From his testimony he backed away and fell. He also temporised. When he first struck the

deceased it was on the left shoulder in an attempt to make him drop his knife. Based on the principles of law discussed above, I am of the view that the evidence led by the appellant which I have set down at various stages in this judgment put him squarely within the provisions of Section 224 of the Criminal Code of Western Nigeria. It seems to me that there were reasonable grounds for him to believe that his life was in danger. The deceased armed with a knife lunged at him three times, and it was only on the third occasion that he drew his own knife. Furthermore, having put up the defence it was not for the appellant to establish it. It is settled law that in cases in which the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never on the accused to establish this defence any more than it is for him to establish provocation or any other defence other than insanity. See Chan Kau Alias Chan Kai and The Queen (1955) I A.C. 206; R v Lobell (1957) I Q.B. 547 or 1957 I All E.R. 734. The prosecution did not discharge that onus in this

case. Therefore, in my view, both the trial Court and the Court of Appeal erred in not allowing the appellant to avail himself of a defence which on the evidence and law was clearly available to him. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx?
I am of the considered view, that it is clear as crystal that given the eyewitness account of what transpired at the scene of the crime as adduced by the prosecution through PW1, and which shows that the Appellant deliberately or intentionally attacked the deceased with a matchet when he was lying on the ground after being beaten or flogged (and which evidence the lower Court found to be credible), it would have been a perverse finding if the said Court had found that the defence of self-defence availed the Appellant. Indeed, I am also of the considered view that even if the lower Court had been inclined to accept the account of the Appellant as to how the deceased came to sustain matchet wounds, the lower Court was seriously handicapped in this regard, given the evidence of DW2 on page 76 of the record and which goes to show that it was after the Appellant had disarmed or dispossessed the

deceased of the matchet with which the deceased purportedly attacked the Appellant, that the Appellant retaliated by giving the deceased a matchet cut on the head. An act of retaliation in the circumstances as narrated by DW2, in my considered view also rendered the defence of self-defence unavailable to the Appellant.
Flowing from all that has been said is that the lower Court was right in its finding that the defence of self-defence was not available to the Appellant.

I have said it earlier that the Appellant literally devoted the whole of his brief of argument to his entitlement to the defence of provocation which should have reduced his conviction for the offence of murder to one of manslaughter.
The Respondent in its brief of argument responded to the entitlement or non-entitlement of the Appellant to the defence of provocation against the backdrop of the evidence before the lower Court and in doing this, dealt extensively on the principles of provocation and quoting extensively too from decided case; just as the Appellant did.

I am of the considered view that the question as to whether or not a defence of provocation is

available to an accused person charged with the offence of murder, can only properly arise for consideration only because, the prosecution has on the evidence adduced by it in the proof of the offence, proved at least a prima facie case of murder. Murder as defined under the enactment pursuant to which the Appellant was charged is committed in any of the six circumstances enumerated thereunder. Two of the circumstances in my considered view are relevant to the instant case and they are: –
?(1) if the offender intends to cause the death of the person killed or that of some other person;
(2) if the offender intends to do the person killed or some other person some grievous harm; and in this case it is immaterial that the offender did not intend to hurt the particular person who is killed.?

The position of the law has always been and still is to the effect that the trial Court is in the best position to assess the credibility of witnesses and that it is the primary function of the trial Court or tribunal to evaluate evidence placed before it, before arriving at a conclusion; hence this is why it is only where and when the Court fails to

evaluate such evidence at all or properly, that a Court of appeal can intervene and in itself evaluate or re-evaluate such evidence. See the case of FATAI V. THE STATE (2013) LPELR ? 20182 (SC) amongst many others.

In the case of OTEKI V. A-G, BENDEL STATE (supra) the Supreme Court decided amongst others to the effect that a charge is proved by calling evidence the sole object and end of which is to ascertain the truth of a disputed fact or several disputed facts, or in ornate legal phraseology to resolve points in issue. That for this purpose, the prosecution need not field a host of witnesses as truth is not discovered by majority vote, by counting hands or heads. That one witness who is believed will carry more conviction than ten witnesses who are disbelieved or whose testimonies do not induce belief. That where the evidence of a single witness (not being an accomplice) is sufficiently probative of the offence charged, the fact that the witness has other personal interests of his own to serve, is by itself not sufficient to reject such evidence. That where the evidence led is true in fact, the fact that the witness has a grudge against the

accused and that the Judge did not warn himself, will not weaken its validity as it cannot be seriously contested that where the evidence is direct and unassailable, the mere fact that the witness is the accused’s mortal enemy will render his evidence unreliable.

In the instant case, the lower Court after the evaluation of the evidence adduced before it found the evidence of PW1 (who aside from the Appellant and DW2 (Appellant?s mother) was the only other eyewitness to what happened at the scene of the crime) credible and acted on same. The evidence of the said PW1 is on pages 46 ? 53 of the record and I am of the considered view that there is nothing on record that has in any way derogated from the credible account of the witness (i.e. PW1) (as the lower Court found it to be) regarding what the Appellant did to the deceased. I am of the considered view that the Appellant in the attempt to discredit the evidence of PW1 has not only lost sight of the fact that the lower Court discharged and acquitted the 2nd accused person but that the evidence of the Appellant during examination in chief to the effect that the deceased sustained matchet cut

during the struggle he had with the deceased, derogated from the truthfulness of his account in the light of his admission under cross-examination to the effect that he gave the deceased matchet cuts out of revenge and which was also confirmed as it were by DW2; and which on the other hand lent serious credibility to the account of the incident as narrated by PW1.

The lower Court apparently having considered the defence of self-defence as the defence which the evidence before it raised, out of abundant caution considered the defence of provocation. The lower Court did not find any provocative act on the part deceased. The Court also stated that ?even any fancied over? (which I take to be that even if there had been any act of provocation on the part of the deceased), the defence of provocation must fail inasmuch as the perquisites of the defence cannot be said to exist having regard to the evidence before it. The conclusion of the lower Court in this regard in my considered view, cannot be faulted against the backdrop of the decision of the Supreme Court as far back as 1976 in the case of URAKU V. THE STATE (1976) LPELR ? 3424 (SC),

(1976) 6 SC 128; wherein the said Court stated thus: –
?Provocation in law consists mainly of three elements:
(1) The act of provocation;
(2) The loss of self control both actual and reasonable; and
(3) Retaliation proportionate to the provocation.
The three elements are enshrined in our law Section 283 of the Criminal Code Cap. 30 Laws of Eastern Nigeria 1963 which reads:
The term provocation used with reference to an offence of which an assault is an element, includes except as hereinafter stated, any wrongful act or insult of such a nature as to be likely when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered.
This defence of provocation (to reduce a charge of murder to manslaughter) is made available by Section 318 of the Criminal Code which reads:
“When a person who unlawfully kills another in

circumstances which but for this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time to cool, he is guilty of manslaughter only.”
It has received detailed analysis in the case of Chukwuobaji v. The State (1965) 1 All NLR 269, where at p. 274 Ademola, CJ.N., delivering the judgment of the Supreme Court, said:
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It is not the law in Nigeria that refusal to be intimidated or panicked by threat of violence or force amounts to provocation; nor in our view does defiance of any show of force or threat of death amount to provocation on which any person charged with murder may rely to reduce the offence to manslaughter. At this stage, we refer to the observation of this Court in the case of Chukuobaji v. The State (Supra) at p. 275 where Ademola, C.J.N., said:
?To avail himself of the defence in a charge of murder under Section 318 of the Criminal Code the accused must have done the act for which he is charged (i) in the heat of passions (ii) this must have been caused by sudden provocation and

(iii) the act must have been committed before there is time for his passion to cool. There can be no doubt that the attitude of the Nigerian Courts has been to interpret Sections 283 and 318 of the Criminal Code as impliedly including the mode of resentment or in other words, that the retaliation must be proportionate to the provocation offered. In this connection and in consonance with this interpretation by the Nigerian Courts, the doctrine has developed of the behaviour of the average man in the community to which he belongs. See R v. John Okoro (1942) 16 NLR 63 at pp. 65 and 66 and R v. James Adekanmi (1943) 17 NLR 99 at pp. 101 and 102.
And recently, Coker, J.S.C., rationally restated the basis of the defence of provocation when he said in the case of Akang v. The State (1971) 1 All NLR 47 at p. 49:
“Provocation which reduces what would otherwise amount to murder to manslaughter is a legal concept made up of a number of elements which must co-exist. It is of paramount importance in the consideration of this concept that the act held out as a natural and justifiable action of the provoked person be done not in self revenge but in ventilation of a

natural, sudden and contemporaneous feeling of anger caused by the circumstances of the occasion (See Vincent Chukwu v. The State 1966 NLR 274.”
We were unable to find any shred of evidence of any act amounting to provocation offered by the deceased, but find rather in the Appellant, re-determination, instead of sudden temporary loss of self control, and self-induced irrational behaviour.
We concluded that the learned trial Judge arrived at the proper decision on the evidence before him and dismissed the appeal.?
Suffice it to say that given the admission of the Appellant that he gave the deceased matchet cuts in revenge and which as I had earlier stated was confirmed as it were by DW2 that it was after the Appellant had collected the matchet from the deceased that the Appellant retaliated by giving the deceased a matchet cut on the head, the Appellant had by himself removed the defence of provocation from the equation or from the table.
?Flowing from all that has been said is that the aspect of the issue for the determination of the appeal as it relates to the defence of provocation must be and is hereby resolved against the Appellant

as that of the defence of self-defence had initially been done.

In the final analysis, the appeal fails as the sole issue for its determination as formulated by the Appellant has been resolved against him. Consequently, the judgment of the lower Court finding the Appellant guilty of the charge of murder preferred against him and the sentence of death by hanging by the neck passed on him, is affirmed.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in advance, the lead judgment just delivered by my learned brother. Hon Justice Ayobode Olujimi Lokulo-Sodipe, JCA. I agree with the reasoning, conclusions and orders made therein.

?TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.

Appearances

S. Amadi ObiFor Appellant

AND

I.C. Ibeawuchi (Assistant Deputy Director of Public Prosecutions, Imo State)For Respondent