YUNUSA v. STATE (2022)

YUNUSA v. STATE

(2022)LCN/16648(CA)

In the Court of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, June 16, 2022

CA/G/9C/2022

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

UMAR YUNUSA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON SELF-DEFENCE

Self defence has its roots firmly in Common Law. It entails that a person is entitled to protect himself and others for whom he is responsible, from harm by the use of reasonable force. It is the protection of one’s person against injury attempted by another person. When an accused person pleads self defence, what he is saying is that he had no choice in the matter than that to commit the offence, because if he did not do that, the deceased would have killed him. However, in law, for the plea of self defence to exculpate an accused, it must be commensurate or proportional to the act of the deceased.
​The law is replete with provisions guiding the application of the defence of self defence. Starting with the grundnorm, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 33(2) thereof provides –
“33. (2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –
(a) for the defence of any person from unlawful violence or for the defence of property;”
Sections 59, 60, 62, 63 and 65 of the Penal Code also provide –
“59. Nothing is an offence which is done in the lawful exercise of the right of private defence.
60. Every person has a right, subject to the restrictions hereinafter contained, to defend –
a) His own body and the body of any other person against any offence affecting the human body.
62. The right of self defence in no way extends to inflicting of more harm than it is necessary to inflict for the purpose of defence.
63. There is no right of private defence in a case in which there is time to have recourse to the protection of the public authorities.
65. The right to private defence of the body restrictions mentioned in Sections 62 and 63, to the voluntary causing of death only when the act to be repelled is of any of the following descriptions, namely:
(a) An attack which causes reasonable apprehension of death or grievous hurt.” PER SANKEY, J.C.A.

THE CONDITIONS THAT MUST EXIST BEFORE THE TAKING OF A LIFE OF A PERSON IS JUSTIFIED

In Kwaghshir V State (1995) 3 NWLR (Pt. 386) 651 (SC), the apex Court stated that four cardinal conditions must exist before the taking of life of a person is justified, namely: (i) the accused must be free from fault in bringing about the encounter; (ii) 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; (iii) there must be no safe or reasonable mode of escape by retreat; and (iv) there must have been a necessity for taking the life of the person. Thus, a person cannot avail himself of the plea of self defence when he was himself the aggressor and willfully brought on himself, without real excuse, the necessity of killing the deceased. See also Muhammad V State (2017) LPELR-42098(SC) 52-56, A, State V Shontu (2013) LPELR-24206(CA) 18, C-A.
In the case of David V CP, Plateau State Command (2018) LPELR-44911(SC), his lordship, Nweze, JSC, held –
“Simply put therefore, for the defence of self-defence to avail an appellant, there must be clear and unambiguous evidence before the trial Court that the victim was attacking or about to attack the appellant in a manner that grievous hurt or death was possible and he had to defend himself. Above all, the said defence of self defence must have been instantaneous or contemporaneous with the threatened attack, and that the mode of self-defence was not greater or disproportionate with the threatened attack… Thus, the said defence would not avail a person who killed his assailant after successfully disarming him [the assailant]. This must be so since his life was no longer in danger.”

Therefore, for the plea of self defence to succeed, the following conditions must co-exist:
1. The accused must be free from fault in bringing about the encounter;
2. There must be an impending peril to life or of great bodily harm, either real or apparent as to create an 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.
PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Gombe State in Charge No. GM/143C/16 delivered on 17th May, 2017, Coram: Yakubu, J.

The facts leading to the appeal are succinctly as follows: The Appellant was charged for the offence of culpable homicide punishable with death under Section 221 of the Penal Code. The allegation was that sometime on 28-01-12 at Lafiya Wala Village via Talassa in Balanga Local Government Area of Gombe State, the Appellant attacked and stabbed one Umaru Bakari in the stomach with a knife. As a result, Umaru Bakari was certified dead at the General Hospital Talasse by Dr. Bello Ambi. Upon his arraignment before the trial Court, the Appellant pleaded not guilty. In proof of the charge, the Respondent adduced evidence through five witnesses and four exhibits, which included the weapon used, i.e., a double-sided knife, the medical report certifying the death of Umaru Bakari and the confessional statement of the Appellant made at the Gombe State CID. In his defence, the Appellant testified and called two other witnesses. At the close of trial, the learned trial Judge convicted the Appellant as charged and sentenced him to death. Dissatisfied, the Appellant approached the Court vide his Amended Notice of Appeal filed on 04-02-22 where he complained on three grounds. He seeks the following reliefs from this Court:
“An order:
i. Allowing the appeal and setting aside the conviction and sentence to death passed on the Appellant.
ii. Discharge and acquittal of the Appellant.”

At the hearing of the appeal on 24-03-22, learned Counsel for the Appellant, Chief I.O. Ume Esq., adopted the submissions in the Appellant’s brief of argument filed on 23-02-22 and settled by him, in urging the Court to allow the appeal and discharge and acquit the Appellant. In like vein, learned Counsel for the Respondent, Alhassan Muazu Esq., ACSC Ministry of Justice, Gombe State, adopted the submissions in the Respondent’s Brief of argument filed on 28-02-22, also settled by him, in urging the Court to dismiss the appeal and affirm the judgment of the lower Court.

The Appellant, in his brief of argument, distilled one lone issue from Grounds A and B of the Notice of Appeal, thus –
“Whether or not the Honourable Court below rightly treated Exhibits 3 and 3A as confessional statements and on the totality of evidence before it, properly convicted the Appellant and sentenced him to death. (Grounds A and B)”

The Respondent, on his part, formulated the following two issues for determination in his Brief of argument:
1) “Whether the trial Court was not right in holding that Exhibits P3 and P3A by their nature are confessional capable of grounding conviction of the Appellant on them alone. (Ground A)
2) Whether the trial Court was not right in holding that the prosecution has proved the offence of culpable homicide punishable with death under Section 221 of the Penal Code as required by law. (Ground B).”

The contents of both sets of issues are essentially the same. I however elect to resolve the appeal using the sole issue crafted by the Appellant firstly because it is his appeal, and secondly because the issue encompasses the basic complaints contained his grounds of appeal.

ARGUMENTS
Learned Counsel for the Appellant correctly states the law as encapsulated in decided authorities on the ingredients of the offence of culpable homicide punishable with death under Section 221 of the Penal Code, which the prosecution must prove to establish the charge. They are:
i. That the deceased died;
ii. That his death was caused by the accused; and
iii. That he/she intended to either kill the victim or cause him/her grievous bodily harm.

Again, the law is that proof can be by the confession of an accused person, by direct evidence or by a combination of all or any of the two methods.

Learned Counsel disputes that the Appellant’s extra-judicial statements to the Police, Exhibits P3 and P3A, can be categorized as confessional in nature. Relying on Section 28 of the Evidence Act, 2011 and a host of decided cases, Counsel relayed the components of a confession. He contends that rather than being a confession, the statement merely gave an explanation of what transpired during the fracas that led to the death of the deceased. Counsel summarized the statement as only saying that he was attacked by the deceased, after which some students beat him up with sticks. That it was as a result of the attack that the Appellant brought out a knife and stabbed the deceased in his stomach.

Counsel therefore submits that Exhibit P3 (and its English translation Exhibit P3A), was not a confessional statement because it is not an unequivocal admission of guilt. Rather, that the Appellant therein advanced the defence of self defence. He complains that the learned trial Judge, contrary to the law, did not consider this defence. Counsel submits that in cases which attract capital punishment, a Court is enjoined to consider all defences available to an accused person.

Counsel also complains that the lower Court failed to properly evaluate the plea of self defence as it would have led him to the conclusion that the Appellant lacked the necessary mens rea to warrant a conviction for the offence charged. He therefore invites this Court to invoke its power under Section 241(1)(e) of the 1999 Constitution (as amended) and Section 15 of the Court of Appeal Act, 2004 to evaluate the evidence and consider the plea of self defence disclosed by the Appellant. Counsel finally urged the Court to allow the appeal, set aside the conviction and sentence of death, and discharge and acquit the Appellant.

In response, learned Counsel for the Respondent submits that an accused person can be validly convicted on his confessional statement alone if it is voluntary, even without corroboration. He states that the confessional statement made by the Appellant, Exhibits P3 and P3A, at the State CID Gombe were tendered and admitted in evidence through PW5 without objection. In addition, PW1 tendered the knife used by the Appellant to stab the deceased (Exhibit P1) and PW2 gave eyewitness testimony of the incident. He argues that these pieces of evidence serve as corroboration of the confessional statement, notwithstanding that it did not require any corroboration.

Counsel also submits that the Respondent established the three essential elements of culpable homicide under Section 221 of the Penal Code through the evidence of PW1 to PW5. He disagrees that the Appellant raised a defence of self-defence in his statement to the Police, Exhibits P3 and P3A. He however argues that to succeed on a plea of self defence, the Appellant must prove that his life was at risk of imminent threat of death and that, except he took immediate precautionary measures, he stood the risk of being killed; or that he was in such fear when he committed the act that the only alternative open to him to save his life was the action he took.

Counsel refers to the evidence of PW2 which disclosed that it was the Appellant who actually ran after both the deceased and PW2 after they told him that he was wanted by the Police for stealing a goat. He then stabbed the deceased in the stomach with a knife. When the Appellant saw that the deceased had collapsed on the ground, he ran away. PW2 called for help and some people assisted in arresting the Appellant.

Counsel further submits that even if the Appellant’s story was to be believed, in order for the plea of self-defence to avail him, the law requires that the Appellant’s response should be proportionate to the attack meted out on him by his assailant. That from the eyewitness evidence, it was the Appellant who initiated the attack on the deceased when he was told about the invitation by the Police, and not the other way round. Besides, from the Appellant’s account, the deceased was not among the students who allegedly beat him up. Counsel submits that the confessional statement relied upon by the lower Court to convict the Appellant was explicit, direct, cogent and unequivocal and established all the ingredients of the offence, including the mens rea. Counsel finally urged the Court to dismiss the appeal and affirm the conviction and sentence of the Appellant.

RESOLUTION OF SOLE ISSUE
From the evidence adduced at the lower Court by both the Respondent and the Appellant, it is safe to say that there is no dispute about the fact that the first two ingredients of the offence of culpable homicide punishable with death, were proved. To put it plainly, both parties agree that Umaru Bakari is dead, having died almost instantaneously and certified dead at the Hospital shortly after the incident. The Appellant himself admits this much. He also admits the fact that Umaru Bakari died shortly after he (Appellant) stabbed him in the stomach with a knife. In view of this, it is unnecessary for the Court to agitate itself or expend energy on matters which are admitted by the Appellant and therefore deemed proved; in addition to the fact that they were established by credible evidence placed before the lower Court by the Respondent. The learned trial Judge was therefore right when he held that the first and second ingredients of the offence of culpable homicide punishable with death were proved beyond reasonable doubt. This leaves us with proof of the third ingredient of the offence, which is: the intention to cause death or the knowledge that death would be the probable consequence of his action.

In the Appellant’s brief of argument, he has raised the defence of self defence. Learned Counsel for the Appellant contends that the Appellant’s action in stabbing the deceased, Umaru Bakari, with a double-sided knife (Exhibit P1) in his stomach, which action led to the death of Umaru Bakari almost instantaneously, was done in self defence when he was attacked by the deceased who had held him by the collar and some school children who beat him up with sticks. This is the baseline of the Appellant’s appeal. Therefore, this Court will place the extra-judicial statement of the Appellant, Exhibits P3 and P3A, as well as his defence in the trial Court, under scrutiny to see whether there is any evidence to sustain the plea of self defence. The reason is not farfetched. As has been rightly stated by the Appellant’s Counsel, if indeed the plea was raised in the statement of the Appellant to the Police, or if from the evidence placed before the trial Court, the plea of self defence was available to the Appellant, then it is a complete defence to the charge of culpable homicide.

Self defence has its roots firmly in Common Law. It entails that a person is entitled to protect himself and others for whom he is responsible, from harm by the use of reasonable force. It is the protection of one’s person against injury attempted by another person. When an accused person pleads self defence, what he is saying is that he had no choice in the matter than that to commit the offence, because if he did not do that, the deceased would have killed him. However, in law, for the plea of self defence to exculpate an accused, it must be commensurate or proportional to the act of the deceased.
​The law is replete with provisions guiding the application of the defence of self defence. Starting with the grundnorm, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 33(2) thereof provides –
“33. (2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –
(a) for the defence of any person from unlawful violence or for the defence of property;”
Sections 59, 60, 62, 63 and 65 of the Penal Code also provide –
“59. Nothing is an offence which is done in the lawful exercise of the right of private defence.
60. Every person has a right, subject to the restrictions hereinafter contained, to defend –
a) His own body and the body of any other person against any offence affecting the human body.
62. The right of self defence in no way extends to inflicting of more harm than it is necessary to inflict for the purpose of defence.
63. There is no right of private defence in a case in which there is time to have recourse to the protection of the public authorities.
65. The right to private defence of the body restrictions mentioned in Sections 62 and 63, to the voluntary causing of death only when the act to be repelled is of any of the following descriptions, namely:
(a) An attack which causes reasonable apprehension of death or grievous hurt.”
In addition, Section 222(2) of the Penal Code provides –
“222. (2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right to private defence or person or property, exceeds the powers given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.”
In the application of these provisions, it is essential that the person causing hurt in the bona fide exercise of the right of self or private defence, should act without any intention of doing more harm than is necessary for the purpose of such defence. The onus of proving self defence is on the accused. Where the accused sets up the plea of self defence, the question to consider is: whether the accused person had any reasonable apprehension that he would be hurt; particularly in a case where he has caused death, whether he was under any reasonable apprehension of grievous hurt or death to himself. It is the apprehension that is the important point and not the actual injuries suffered by him.

In Kwaghshir V State (1995) 3 NWLR (Pt. 386) 651 (SC), the apex Court stated that four cardinal conditions must exist before the taking of life of a person is justified, namely: (i) the accused must be free from fault in bringing about the encounter; (ii) 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; (iii) there must be no safe or reasonable mode of escape by retreat; and (iv) there must have been a necessity for taking the life of the person. Thus, a person cannot avail himself of the plea of self defence when he was himself the aggressor and willfully brought on himself, without real excuse, the necessity of killing the deceased. See also Muhammad V State (2017) LPELR-42098(SC) 52-56, A, State V Shontu (2013) LPELR-24206(CA) 18, C-A.
In the case of David V CP, Plateau State Command (2018) LPELR-44911(SC), his lordship, Nweze, JSC, held –
“Simply put therefore, for the defence of self-defence to avail an appellant, there must be clear and unambiguous evidence before the trial Court that the victim was attacking or about to attack the appellant in a manner that grievous hurt or death was possible and he had to defend himself. Above all, the said defence of self defence must have been instantaneous or contemporaneous with the threatened attack, and that the mode of self-defence was not greater or disproportionate with the threatened attack… Thus, the said defence would not avail a person who killed his assailant after successfully disarming him [the assailant]. This must be so since his life was no longer in danger.”

Therefore, for the plea of self defence to succeed, the following conditions must co-exist:
1. The accused must be free from fault in bringing about the encounter;
2. There must be an impending peril to life or of great bodily harm, either real or apparent as to create an 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.

Hence, there must be factual evidence to which the plea of self defence can be tied.

From the evidence placed before the trial Court, PW2 Suleiman Wakili, an eyewitness to the entire incident, gave a graphic description of what transpired on the date in question. He is the Appellant’s uncle. The Appellant, who had been pestering him for money to travel to Abuja, subsequently stole his goat when he failed to comply with his request. The father of the deceased, Bakari Wakili, who testified as PW3, is also an uncle to the Appellant. He had traced the PW2’s goat to a neighbouring village where the Appellant had sold the goat to the ward head. PW3 retrieved the goat and gave it back to PW2. On hearing this, the Appellant threatened to kill PW2. PW2 made a report of this threat at the Police Station. The Police attempted to arrest the Appellant at his grandmother’s house, but could not find him. The next day, the Police told PW2 to tell the Appellant to come to the Police Station. PW2 once again returned to the house in company of the deceased, Umaru Bakari (the Appellant’s cousin and PW3’s son). From the evidence of PW2, after delivering the message of the Police to the Appellant, the Appellant attacked them as they were leaving the house. Hear his viva voce evidence at pages 49-50 of the Record of Appeal:
“Myself and Umaru Bakari went to the accused person’s house and told him that the Police are inviting him. The accused person said we should go; he would come to the Police Station himself. When we left the accused person and going away we just saw the accused person running after us towards us so Umaru Wakili (deceased) tried to get hold of the accused person. The accused person just brought out a knife and stabbed the deceased with it. The accused person seeing that he had stabbed Umaru Bakari stood up to ran (sic) away. So I shouted for help. Many people came and assisted in arresting the accused person and he was then taken to the Police Station of Lafiya. The victim of the stabbing Umaru Wakili was taken to the hospital but died before reaching the hospital. The accused person stabbed the deceased with the knife at the right side of deceased stomach when the victim died before reaching the hospital at Talasse.” (Emphasis supplied) Under cross-examination, PW2 clarified his relationship with the Appellant thus –
“Yes I am related to the accused person because he is the son of our late senior brother Yunusa Sanda.”

PW3, was Bakari Wakili, the father of the deceased (Umaru Bakari, also referred to as Umaru Wakili), and he testified inter alia as follows at pages 52-53 of the record:
“I know the accused person, his name is Umaru Yunusa Sanda. Yes I also know one Umaru Bakari, he is my son. Umaru Bakari is killed by Umaru Yunusa the accused person. In January, 2012, what I know is that my junior brother Sulei Wakili reported to me that the accused person had gone to my farm and collected Tomatoes. I said they should go and call the accused person for me. They met him and he (the accused person) come. The accused person said he will not repeat same. Later in the night he went to the house of Sulei and took away Sulei’s goat. The accused person went and sold the goat at Dutse Village around Tiya Kunu. I went to the village i.e., Tiya Kunu and recovered the goat from one house of Isa, the Ward Head. Mal. Isa told me that it was the accused person that sold the goat to him. For me I took the goat and told Isa to recover his money from the person that sold the goat to him i.e., the accused person. When the accused person heard that I have recovered the goat and brought same back, the accused person started looking for the where about of Sulei Wakili that he will kill him. I then called Sulei and told him of the threat by the accused person. So I advised him to report to the Police. I was at home later when one Yunusa reported to me that the accused person has stabbed my son Umaru Bakari with a knife and my son has been taken to the hospital. I then hired a motorcycle to the Talasse General Hospital where I met my son dead lying on the ground with his intestine out.”
Under cross-examination, PW3 reiterated his evidence as follows:
“Yes when the accused person came he met me in front of my house and told me that he was looking for Sulei and if he found him he will kill him and that was the reason why I told Sulei to report the matter to the Police since already the issue of the stolen goat was before the Police. Yes the accused himself told me that he was looking for Sulei to kill him.” (Emphasis supplied) From this testimony, it is manifest that the Appellant had formed the intention to kill.

In addition to the evidence of PW2 and PW3, the Respondent presented the confessional statement of the Appellant to the Police, Exhibits P3 and P3A. When the statement was sought to be tendered in evidence, no objection whatsoever was raised to its admissibility in evidence, even though the Appellant was represented by Counsel. It was therefore too late in the day for the Appellant to contend during his oral testimony before the trial Court as DW1 that he was beaten up before he made the statement. The voluntariness or otherwise of the statement was no longer in issue.

However, the Appellant retracted the statement at the trial Court. The account of what happened leading to the death of Umaru Bakari in Exhibits P3 and P3A, in large part, aligned with the evidence of PW2 and PW3 as to the theft of the goat and the fact that he stabbed the deceased with the knife he had in his possession. The relevant portions of the statement are reproduced below:
“Then on 28/01/2012 at about 00 00hrs, I went to Suleiman Wakili compound and stole away one among his male goats and took it to one village called Kwanekeleme at Futuki District of Balanga LGA where I sold the said goat to one Mallam Hassan at the cost of five-thousand-naira N5000. I was given N2000 to come back in three days’ time for the balance. I went to collect my money on the promised day but Mallam Hassan could not give me, telling me that my stepfather Suleiman Wakili have collected back his goat, that I should go and apologize to him… My stepfather came with one of my senior brother by name Umaru Bakari on a motorcycle, on their arrival, Umaru Bakari then held me by the collar of my shirt and lift me up while some students rushed and started beating me with sticks. I then removed a knife in my possession and stabbed Umaru Bakari at his stomach and he fell down. They arrested me to a Police Station. I heard that Umaru Bakari died at the Hospital that same day.” (Emphasis supplied)

This is certainly in the nature of a confession, as the Appellant clearly, and directly and unequivocally admitted that he stabbed the deceased to death with a lethal weapon such as a knife because the deceased held his collar and “lifted him up”. However, there was no evidence that at the time he stabbed the deceased, his life was in danger, or that by being held by the collar, he was in danger of any grievous bodily harm.

The Appellant’s account of the incident however changed drastically and was more embellished when he testified at the trial Court as DW1. He gave another version of what transpired as follows (at pages 68-69 of the Record) inter alia thus:
“Then my aunty said my stepfather reported me to the Police on the reasons that I stole his goat. My stepfather brought my namesake Umaru Bakari to my grandmother’s house. Umar met me and held me by the colour (sic) and slapped me. We then started wrestling and came out and met my stepfather. On seeing that I was fighting with Umar he, my stepfather ran to where his motorcycle was parked and brought out a knife. On his coming back he wanted to stab me with the knife and lifted my hand to protect myself when the knife cut me on the right hand. On his second attempt to strike me I dodged and the knife stabbed my namesake, Umar. On seeing that Umar was cut I ran away and was chased by the school children who finally got hold of me and they beat me up.” (Emphasis supplied)

It is evident that the Appellant’s account in Exhibits P3 and P3A, of how Umaru Bakari met his demise, is radically different from the account in his evidence-in-chief at the lower Court. In his extra-judicial statement which, contrary to the contention of his Counsel, is manifestly confessional, the Appellant clearly stated that he pulled out a knife (Exhibit P1) and stabbed the deceased in his stomach when he (deceased) held him by the collar. This account is largely in tandem with the account given by PW2, the only eyewitness to the incident. However, in his evidence before the trial Court, he disowned possession of the knife completely and contended that it was PW2 (and not him), that brought out a knife and stabbed the deceased in his stomach. Nonetheless, in testing the veracity or otherwise of the confessional statement, the evidence of PW2 provides sufficient corroboration of the facts in the statement, which account was given by the Appellant at the earliest opportunity after the incident when the facts were still fresh in his memory. In view of this, the subsequent retraction of the statement by the Appellant is not credible. It is a mere afterthought and was rightly rejected by the learned trial Judge.

In addition to this, I agree with the assessment of evidence by the learned trial Judge when he found that the evidence of the Appellant, as DW1, and that of his sister, as DW2, were uncontradictory. Therefore, in line with the position of the law, he was right not to place himself in the position to pick and choose whose evidence to believe. Both had to be discarded.

Furthermore, in his evidence at the trial Court, the Appellant as DW1 contended that it was PW2 who brought out the knife from his motorcycle and that in an attempt to stab him, accidentally stabbed the deceased. If this is the account that the Appellant wants the Court to believe, then it defeats the plea of self defence canvassed by learned Counsel for the Appellant before this Court.

It is apparent that the Appellant is clearly gambling and/or fishing, in the hope that, should the defence put forward by him as DW1 wherein he outrightly denied stabbing the deceased, fails to hold, then he can fall back to his confessional statement to somehow squeeze out a plea of self defence. However, the Appellant cannot in one breath, admit to stabbing the deceased allegedly in self defence; yet in another breath, claim that he did not stab the deceased, but that it was PW2 that stabbed him accidentally.

From a calm consideration of the entirety of the evidence, the Appellant’s evidence in Court as DW1 was clearly an afterthought. It is therefore no surprise that in this Court, the Appellant has chosen to dump his testimony in Court, and instead, now relies on the account in his confessional statement to set up a plea of self defence. However, the factual circumstances of the case do not warrant the Appellant’s plea of self-defence, a statutory defence under Section 59 of the Penal Code, entitling an accused person to an acquittal.

The Appellant has not been able to bring himself under the conditions for the application of the plea of self-defence. Firstly, the Appellant was not free from fault in bringing about the encounter; secondly, there was no impending peril to his life or of any great bodily harm, either real or apparent, such as to create an honest belief of an existing necessity to react so extremely by stabbing the deceased and take his life; thirdly, he had ample opportunity to escape if his fear was that he was going to be arrested and taken to the Police for his misdeeds; and fourthly, there was absolutely no necessity for taking the life of the deceased, as neither was his life under threat nor was he in fear of any grave bodily harm. The Appellant’s fear was clearly that of arrest by the Police, and this, in no way, falls within the conditions for a successful plea of self defence.

Indeed, even if the Appellant’s story was to be believed that the deceased held him by the collar, the Appellant’s response by stabbing him with a lethal weapon, such as a double-sided knife, in a vulnerable and delicate part of his body, such as his stomach, with enough force to cause his intestines to fall out, was certainly disproportionate to the alleged assault by the deceased. In addition, the allegation that he was beaten up by school children and so felt threatened, was not proved by any iota of evidence. The Appellant was therefore not entitled to be covered by the belated plea of self defence which was only raised in this Court vide the Appellant’s Brief of argument. This is because, contrary to the contention of the Appellant’s Counsel, such a defence was neither disclosed in the confessional statement of the Appellant/accused person, nor was it raised in his testimony before the trial Court, where he did a summersault or a volte face and outrightly denying that he stabbed the deceased. Yet, he now agreed that he stabbed the deceased, but that it was in self defence. This Court will not side with such a slippery customer who is seeking for a way, by all means, to escape the hangman’s noose. There was at least one victim in this encounter, Umaru Bakari, a young man in his prime; he died, and he is entitled to justice. Thus, based on the cogent and credible evidence placed before the trial Court, the learned trial Judge was right when he found that the action of the Appellant in stabbing the deceased to death, was an intentional and deliberate act, thereby establishing the third ingredient of the offence.

In conclusion, from the evidence laid before the trial Court, I agree that the defence of self defence was not available to the Appellant, as same was neither disclosed in the entirety of the evidence placed before the trial Court, nor was it established. Also, the three ingredients of the offence of culpable homicide punishable with death were proved both by direct eyewitness evidence, as well as by the Appellant’s confessional statement beyond reasonable doubt. I therefore resolve the sole issue for determination against the Appellant.

In the result, this appeal lacks merit. It fails and is dismissed.

Accordingly, I affirm the judgment of the High Court of Justice, Gombe State in Suit No. GM/143/16 between Umar Yunusa V The State, delivered on 17th May 2017, Coram: A.M. Yakubu, J.

Consequently, the conviction and sentence of the Appellant for the offence of culpable homicide punishable with death under Section 221 of the Penal Code, is confirmed.

IBRAHIM SHATA BDLIYA, J.C.A.: I read in draft the judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.

​I agree with the reasoning and conclusion arrived at by my learned brother that the appeal has no merit. It is for the reasons therein adumbrated in the lead judgment, which I adopt as mine, that I too dismiss the appeal. I affirm the judgment of the High Court of Justice Gombe State, in suit no GM/143c/2016, delivered on the 17th of May, 2017.

Consequently, the conviction and sentence of the appellant by the Court, for committing the offence of culpable homicide punishable with death, under Section 221(a) of the Penal Code, is affirmed.

EBIOWEI TOBI, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, Jummai Hannatu Sankey, JCA wherein His Lordship dismissed the appeal, affirmed the judgment of the lower Court, upholding the conviction of the Appellant for the offence of culpable homicide punishable with death under the provision of Section 221 of the Penal Code Law and his sentence to death. I agree entirely with the judgment especially the reasoning and conclusion reached therein. The conviction in my opinion was based mainly on the confessional statement of the Appellant, Exhibits P3 and P3A. My Lord in her characteristic manner has dealt with the question whether a Court can convict on the retracted confessional statement of an accused person. It is on this point and whether the defence of self defence can avail the Appellant that I will make a little contribution.

A confessional statement is a statement made by an accused person stating in clear terms or suggesting that he committed the offence for which he is charged for. This statement must be made voluntarily which positively, directly and unequivocally suggest that he committed the offence. Conviction can be based on a confessional statement even if retracted provided it is a statement made voluntarily positive, direct and unequivocal. To amount to confessional statement, the statement must be made under caution, freely and voluntarily without any form of inducement or threat. See Kasa vs. State (1994) 5 NWLR (Pt.344) 269. It is usually made to the police. In Adesina & Anor vs. State (2012) 6 SC (Pt.III) 114, the Supreme Court per Adekeye, JSC held:
“By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional.
When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible. See Egboghonome vs. State (1993) 7 NWLR (Pt.306) pg. 383, Bature vs. State (1994) 1 NWLR (Pt.320) pg. 267, Solola vs. State (2005) 11 NWLR (Pt.937) pg.460, Edhigere vs. State (1996) 8 NWLR (Pt.464) pg.1, Uluebeka vs. The State (2000) 4 SC (Pt.1 pg. 303, Idowu vs. State (2000) 7 SC (Pt.11) pg.50, Alarape vs. State (2001) 14 WRN 1.”
See also State vs Ahmed (2020) 14 NWLR (pt 1743) 1.
This statement was retracted by the Appellant at the trial. This retraction does not make the statement inadmissible and I venture to opine as stated clearly by the apex Court, an accused can be convicted on the retracted confessional statement proved it is voluntarily made. An accused cannot just be allowed to go free simply because he retracted the statement he made which is confessional. Retraction is a natural thing to do bearing in mind that there can be no better evidence against a person than his own confession that he committed the offence. It is common knowledge that sometimes the police use several methods to get a confession from a person. Some illegal means are used but it is also true that even when the accused of his volition made a confessional statement when faced with the reality of conviction in Court will naturally want to retract. It is these two extreme situations that a Court will have to balance when faced with retracted confessional statement. This is why in my opinion the apex Court has placed a caveat though not mandatory that a confessional statement need to pass through a veracity test, which is other evidence other than the confession which corroborates the confession and makes the confessional most probably true. In Akinrinlola vs The State (2016) 16 NWLR (pt 1537) 73, the apex Court held:
“It is well settled that once a statement is in compliance with the law and rules governing the method for taking it and it is tendered and admitted as an exhibit, then, it is good evidence and even if later retracted, the retraction will not vitiate its admission as a voluntary statement…..This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt.138) 150, the Supreme Court stated:-
That to test the veracity of a confessional statement, the following should be evident:-
1. Is there anything outside the confession which shows that it may be true?
2. Is it corroborated in anyway?
3. Are the relevant statement of facts made in it most likely true as far as they can be tested?
4. Did the accused have the opportunity of committing the offence?
5. Is the confession possible?
6. Is the alleged confession consistent with other facts which have been ascertained and established? Along the same line of thought, this Court stated in Alarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.”
See also Bio vs State (2020) 7 NWLR (pt 1723) 218.

My Lord has reproduced part of the confessional statement in the leading judgment and I will not need to reproduce it here again but suffice to say that it satisfies the provision of the law to be called a confessional statement. Though it was retracted does not make the conviction untenable. The Appellant was properly convicted except there is a viable defence raised by the Appellant. 

By law, a Court is under obligation to consider any defence raised by an accused person. Looking at the confessional statement, the Appellant raised a defence of self defence. The question is whether this defence can avail the Appellant.

When the defence of self-defence is raised, it presumes that the accused admitted committing the offence but in circumstance which makes him not liable for the offence. For this defence to avail the Appellant, it must be shown that the act used to defend himself is proportionate to the danger he was confronted with. The implication of this is that the defence can only avail a person if he was in reasonable apprehension of death or grievous harm in which case the only option open to him is to defend himself and in doing so the act must be proportionate to the danger apprehended.
In Adeyeye v. State (2013) LPELR-19913(SC), the apex Court held:
“The defence of self-defence by nature is determined essentially on facts and circumstances of each case. See Omoregie V. The State supra at 615. The guiding principles of self-defence are necessity and proportion. The two questions which ought to be posed and therefore answered before the trial Court were: – (1) on the evidence, was the defence of self-defence necessary? (2) was the injury inflicted proportionate to the threat offered, or was it excessive? If however the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such a self-defence, then the defence cannot avail the accused. See R. V. Onyeamaizu (1958) N.R.L.R 93. It is also trite that the defence is weakest where the position of the victim is weaker than that of the accused and hence the issue of self defence does not arise; the defence will also not be available. See Udofia V. The State (1984) NSCC 836, at 856 – 857.” Per OGUNBIYI, J.S.C.
One more case in this point will not be out of place. This is the case of Ochani v. State (2017) LPELR-42352(SC), where the Supreme Court in further driving home this point held:
“In that defence of self defence, two words are key to a defence i.e. necessity and proportion. The relevant Legislation dealing with the defence of self defence is Section 286 of the Criminal Code Cap 77, which reproduction states as follows:-
“When a person is unlawfully assaulted and has not provoked the assault it is lawful for him to use such force to the assailant as it is reasonably necessary to make effectual defence against the assault. Provided that the force used is not intended and is not such as is likely to cause death or grievous harm.”
lf the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on reasonable ground that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use such force on the assailant as is necessary for the defence even though such force may cause death or grievous harm.
The defence of self defence by nature is determined essentially on facts and circumstances of each case. See OMOREGIE vs. THE STATE (2008) 12 S.C. (Pt.111) 80. The guiding principles of self defence are necessity and proportion. The two questions which ought to be posed and therefore answered before the trial Court were:
(1) On the evidence, was the defence of self defence necessary?
(2) Was the injury inflicted proportionate to the threat offered? Or was it excessive?
If however the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such a self defence, then the defence cannot avail the Accused. See R. v. Onyea Maizu (1985) NRLR 93.
It is also trite that the defence is weakest where the position of the victim is weaker than that of the accused, and hence the issues not arise, the defence will also not be available. See Udofia vs. The State (1984) 9 S.C (Reprint) 51, Adeyeye vs. The State (2013) 1-2 S.C. (Pt.1) 143, Ojo Adeyeye vs. The State (2013) 1-2 S.C. (Pt.1) 143.” Per BAGE, J.S.C.

From the confessional statement of the Appellant and the evidence before the lower Court, the defence could not avail the Appellant as the response to what the deceased is alleged to have done to him does not warrant intentional stabbing the deceased with a knife as he did. The response is excessive and not proportionate to what the deceased did to the Appellant.

For the above reason and for the fuller reason in the leading judgment of my learned brother, Jummai Hannatu Sankey, JCA, I also hold that this appeal lacks merit and it is dismissed.

Appearances:

Chief I.O. Ume Esq. with him M.K. Gurumyen Esq. For Appellant(s)

Alhassan Muazu Esq., ACSC Ministry of Justice, Gombe State. For Respondent(s)