ABDULLAHI AHMADU v. THE STATE (2017)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of July, 2017

CA/YL/106C/2016

Before Their Lordships

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria


Between

ABDULLAHI AHMADU (A.K.A) GALAU-GALAU Appellant(s)

AND

THE STATE Respondent(s)

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JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on the 5th May, 2014 in the High Court of Gombe State sitting at Gombe. The Appellant was tried and convicted for the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code.The facts of the case are short and simple. According to the PW2 who was the star witness, she went to the grinding mill and found the place locked. She was told that the operators of the grinding machine had gone to watch football. She was on her way to the house where they were watching football when the Appellant called her. The Appellant asked her whether she received a message through her friend. The message was that the Appellant loved her. The PW2 told the Appellant that she was married. The Appellant retorted so what if you are married.
As he said so the deceased approached. The deceased asked the PW2 who she was standing with. She said that she did not know the man because at that time she had not known the Appellant’s name. The deceased drew near looked at the Appellant and slapped him.
Immediately, the Appellant drew a knife and stabbed the deceased and ran away. The PW2 and the deceased went to the police station which was not far from the scene of the incident. Blood was gushing out from the side of the deceased’s ribs.
From the police station, they went to the hospital. The deceased gave up at the gate of the hospital. In the hospital the deceased was confirmed dead.
The police was able to arrest the Appellant about one year after the incident and PW2 was asked if the Appellant was the person that stabbed the deceased. The PW2 answered in the affirmative.
In his defence the Appellant said he was sitting with the PW2 in the night around 8:00pm in July, 2006 when the deceased attacked him by beating him. The Appellant stood up and held the hand of the deceased. The deceased drew out a knife from his bag. The deceased cut the Appellant with his knife on the hand. The Appellant held the deceased and tried to collect the knife from the deceased. As both of them struggled for the knife, the deceased cut himself with the knife, may be around his chest.
Some people came and asked what happened.
He told the people that he just saw the deceased attack him. One of the people said he should just go his own way.
Before leaving the scene of the incident, he noticed that the deceased bent down and was holding his stomach.
When he was arrested about one year after the incident, he told the police that the deceased killed himself.
After considering evidence and addresses of learned counsel for the both parties, the Appellant was found guilty of culpable homicide punishable with death under Section 221 of the Penal Code and sentenced to death.
The Appellant appealed to this Court by a notice of appeal containing seven grounds of appeal on 19th June, 2015 extension of time to appeal having been granted on 17th June, 2015 by this Court.
In compliance with the Rules of this Court, the Appellant on 8th December, 2016 filed Appellant’s brief of argument in which he presented the following six issues for determination from the grounds of appeal.

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i. Whether the Court below was right in convicting the appellant based on a fundamentally defective charge and serious contradictions in the case of the prosecution? Issue settled from ground 1.
ii. Whether the Gombe State High Court was right when it admitted in evidence the alleged confessional statement of the appellant which it subsequently used to convict and sentence him to death? Issue settled from ground 2.
iii. In the light of the facts available in the trial whether the Gombe State High Court was justified in rejecting the defence of provocation put forward by the appellant and the failure to consider self defence at his trial before that Court? Issue settled from ground 3.
iv. Whether in the light of Sections 59, 60 and 222 of the Penal Code Law vis-a-vis the facts and the circumstances surrounding this case, the Gombe State High Court was right in convicting and sentencing the appellant to death under Section 221 of the Penal Code Law? Issue settled from ground 4.
v. Whether a Court is bound to act on any document once admitted in evidence or in the course of evaluating the evidence a Court can still be addressed or persuaded to consider the document already admitted as to decide whether or not to act on same? Issue settled from ground 5.
vi. Whether the decision of the Gombe State High Court 
to convict and sentence the appellant to death under Section 221 of the Penal Code Law is supportable in the light of the pieces of evidence the prosecution placed before that Court to secure the said conviction and sentence? Issue settled from grounds 6 & 7.
The Respondent formulated two issues from the six grounds of appeal. No issue was formulated from ground 7 by the Respondent. The two issues formulated by learned counsel for the Respondent are reproduced immediately hereunder:
a. Whether the trial Court was right in holding that the prosecution had proved the offence of culpable homicide punishable with death under Section 221 of the Penal Code against the Appellant. This issue relates to grounds 1, 2, 5 and 6.
b. Whether from the totality of the trial Court proceedings there could be said to exist the defenses of provocation and self defense in favour of the Appellant. This issue relates to grounds 3 and 4.

The Appellant filed Appellant’s reply brief of argument on 17th May, 2017.
The appeal was argued on the following briefs of argument:
1. Appellant’s Brief of Argument dated and filed 8th December, 2016.
2. Respondent’s Brief of Argument dated 1st March, 2017 filed on 6th March, 2017 but deemed duly filed and served 7th March, 2017.
3. Appellant’s Reply Brief of Argument dated and filed 17th March, 2017.
The Appellant filed a list of additional authorities on 13/6/2017.
Arguing issue 1, learned counsel for the Appellant pointed out that after the application to prefer a charge was moved and granted the prosecution applied that the proposed charge filed with the application be adopted as the charge before the Court. The application was granted but no amendment was effected as can be seen at page 67 lines 16  20 of the record of appeal. It was the same charge that was read to the Appellant, it was pointed out. The Appellant’s plea, it was further pointed out, was taken the same day and the matter subsequently adjourned for the prosecution to call witnesses to prove their case as shown in page 67 lines 21  34 of the record of appeal.

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We were referred to page 6 of the record of appeal containing the charge.
It was contended that the only application was for the proposed charge to be adopted as the charge which the Court granted nevertheless it is still the proposed charge as the word proposed was never deleted.
It was submitted therefore that the charge upon which the Appellant was tried, convicted and sentenced to death was nothing but a proposed charge contrary to Section 187 of the Criminal Procedure Code which provides for the reading out in Court of the charge.
It was contended that there is no provision under the law for a proposed charge to be adopted as the charge and read to an accused person for him to plead to. It was therefore wrong for the Appellant to be asked to plead to such a charge; it was submitted.
It was further argued that from the evidence before the Court none of the three witnesses called by the prosecution gave any date of the alleged offence. However, the proposed charge upon which the Appellant was tried, convicted and sentenced stated that the offence was committed on or about the 7th day of July, 2016 while the charge itself was dated 15th day of February, 2000.
It was therefore submitted that under the circumstances the trial, conviction and sentence to death of the Appellant violates not only the express provisions of Sections 201 and 202 of the Criminal Procedure Code but also Section 36 (6) (a) of the 1999 Constitution (as amended). The Appellant, it was submitted, cannot be said to have been informed in detail the nature of the offence. It was submitted that it was not safe for the Court below to have acted on the said proposed charge to convict and sentence the Appellant without reconciling the material contradictions. We were referred to Dagayya Vs. State (2006) 134 LRCN 397 at 430.
The Court was urged to set aside the conviction and sentence of the Appellant.
On issue 2, learned counsel for the Appellant submitted that for a confessional statement to be admissible in law, it must pass some tests set by law. We were referred to Section 29 (2) and (5) of the Evidence Act. The prosecution, it was submitted, has a duty to establish that the statement was voluntarily made and that it was not obtained under suspicious circumstances.
It was submitted that the prosecution was unable to satisfy this requirement in the instant case. Learned counsel for the Appellant claimed that the PW3 mentioned that the Appellant was brought to the police station on 13th July, 2006 and was kept in cell until 26th July, 2007.
He submitted that the Appellant gave an account of how he was tortured by three policemen Alfred, Garba Pia  Pia and one IPO who said they would kill him if he did not speak the truth. How the Appellant showed the Court marks on his hands and legs where he was hanged. How the appellant mentioned that they broke his head from the beating he received.
It was submitted that the failure to call the policemen mentioned by the Appellant to explain their role in the alleged confessional statement created doubts as to the genuineness or voluntariness of the said statement. It was further submitted that this put to question the claim of PW3 that the Appellant gave his statement voluntarily. We were referred to the decision of this Court in Banjo Vs. State (2012) All FWLR (Pt. 609) 1175 and that of the Supreme Court in State Vs. Olashehu Salawu (2012) All FWLR (Pt. 614) 1 at 23.

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On issue 3, the law, it was submitted is that the Court should consider all defences available to an accused person whether specifically raised or not once there are facts or evidence available to support that defence. We were referred to Uwaekweghinya Vs. State (2005) Q.C.C.R Vol. 2 page 78 and Takida Vs. State (1969) 1 All NLR 270 at 273  274.
It was submitted that self defence is a complete defence. Therefore where it is raised the prosecution has the burden of disapproving it. It was submitted that self defence and provocation can be raised and considered together from the same set of facts. We were referred to Omorogie Vs State (2011) LRCNCC 262 and Akpan V. State (2009) 7 LRCN CC 159.
It was submitted that the evidence of PW2 at page 69  70 of the record of appeal raised the defence of provocation and self defence.
The Court below, it was submitted, considered only the defence of provocation and held that the defence was not available to the Appellant. It was submitted that the Court below was wrong to hold that the defence of provocation was not available to the Appellant.
It was submitted that words alone can amount to provocation as far as they are directed at the accused person not to talk of slapping in the face of a young lady. We were referred to Akalezi Vs. The State(1993) 2 NWLR (Pt. 273) 1 at 14, Ubani Vs. The State (2001) FWLR (Pt. 44) 483 at 490 and Shalla Vs. State (2008) 156 LRCN 34 at 66 and 75.
The Appellant, it was submitted, would have been provoked to act the way he did.
On self defence, we were referred to Uwagboe Vs. State (2010) 8 LRCNCC 122 at 135. It was submitted that from the evidence before the Court, the Appellant had no room to think and measure the force to use. It was submitted that he did not even know where the knife struck the deceased and he struck only once in the heat of passion. He did not even stand back to fight again as he fled for his dear life.
It was submitted that the Court below erred when it held that the defence of provocation does not avail the Appellant. It was also in error when it failed to consider the defence of self defence.
On issue 4, learned counsel for the Appellant adopted his arguments on issue 3 for this issue. It was further submitted that Section 60 of the Penal Code grants the Appellant the right to private defence and that in the exercise of this right the Appellant is immune from liability under Section 59 of the Penal Code. The Court was also referred to Section 222 (4) of the Penal Code.
It was submitted that the Appellant cannot be held to have committed the offence of culpable homicide punishable with death under Section 221 of the Penal Code.
On issue 5 it was argued that the Court below refused to consider the submission of Appellant’s counsel that Exhibit 1 and 1A offends Section 29 (2) (a) and (b) of the Evidence Act and held that the submission was an afterthought. It was submitted that the Court below was wrong in this conclusion.
It was submitted that the alleged confessional statement did not pass the test provided for under Section 29 (2) (a) and (b) of the Evidence Act. We were again referred to Banjo Vs. State (supra) and State Vs. Olashehu Salawu(supra).
The Court below, it was submitted, was obliged to consider the effect of Section 29 of the Evidence

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Act on Exhibit 1 and 1A.
On issue 6, it was submitted that where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law places on him thereby entitling the accused person to the benefit of the doubt. We were referred to Afolabi Vs. The State (2011) 194 LRCN 136 at 158.
Learned counsel for the Appellant attacked the evidence of witnesses called by the prosecution. He wondered whether the PW2 was a credible witness in view of the fact that her name and marital status were uncertain. The Court below it was submitted, should have not relied on the evidence of PW2 in convicting the Appellant.
Again learned counsel for the Appellant attacked the reliance on Exhibit 1 and 1A, the confessional statement of the Appellant. According to learned counsel, the admission contained in the confessional statement has two possible interpretations. It was submitted that a confessional statement must be unequivocal in the sense that it leads to the guilt of the maker. It was submitted that where a confessional statement is capable of two interpretations in the area of guilty or not guilty, the trial judge is not supposed to convict an accused person but to give him the benefit of the doubt. We were referred to Solola Vs. State (2005) All FWLR (Pt. 269) 1751. An admission of guilt but with a defence or explanation, it was submitted, does not amount to a confession. We were referred to Uwaekweghinya Vs. State (supra).
It was submitted that on the evidence led by the prosecution, there was no cogent reason for convicting and sentencing the Appellant to death. We were referred to Obgor Vs. State (1999) 2 LRCNCC 117 at 124.
Learned counsel for the Respondent submitted that the argument of learned counsel for the Appellant that the charge against the Appellant was defective in form was misleading. We were referred to page 67 of the record of appeal where prosecuting counsel applied for the proposed charge to be amended and the application was granted.
It was submitted that the argument of Appellant that the charge upon which the Appellant was tried and convicted predated the date of the offence was misleading because all the processes filed for the trial were dated 2010. We were referred to pages 3, 4, 5, 6 and 7 of the record. It was submitted that the application for leave together with all the annexures were corrected and dated 2010.
It was submitted that for any defect in a charge to affect the charge, it must be fundamental and shown to have misled the accused. The Appellant, it was pointed out, was represented by counsel throughout the trial and he did not object to the charge before it was read to the Appellant. It is therefore late in the day to argue that the charge was defective in form and that the charge predated the offence. We were referred to Timothy Vs. FRN (2012) 7 SCM 214 and Okewu Vs. FRN (2012) 4 SCM 118.
On the complaint that all the witnesses called by the prosecution did not testify as to the date on which the alleged offence was committed, it was submitted that the Appellant was not misled as to the date he allegedly committed the offence. We were referred to the confessional statement of the Appellant. The Appellant, it was submitted, was aware of the date of the alleged offence and the fact that he was arrested about one year after the alleged commission of the offence.

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On the complaint that the Court below erred in admitting the confessional statement of the Appellant, learned counsel for the Respondent submitted that Appellant’s counsel sought to mislead the Court by claiming that Appellant was kept in cell for unexplained reasons for one year 13th July, 2006 to 26th July, 2007. The assertion, it was submitted, is not borne out from the record of appeal. He referred the Court to page 83 paragraph 8 of the record of appeal where PW3 said that the Appellant was brought to the State CID on 24th July, 2007. This, it was submitted was confirmed by the Appellant under cross examination when he said that he stayed away for about one year.
On the confessional statement, it was submitted that the Court below rightly admitted the statement in evidence and acted on it. It was submitted that afterall, when the Appellant testified in Court, he denied making any statement. So for the Appellant to say he was tortured before making his statement to the police is an afterthought. We were referred to Alarape & Anor Vs. State (2006) LRCN 375.
The identity of the PW2, it was submitted, was in no way in doubt in the sense that the witness was in Court and identified the Appellant. She identified the Appellant as the person who stabbed the deceased to death. The Appellant did not deny that fact and did not deny knowing the PW2 or visiting her on the day of the alleged commission of the offence.
It was submitted that the evidence of PW1 and PW2 against the Appellant is cogent, positive and reliable. It was submitted that for any inconsistency or contradiction to affect the case of the prosecution, it must touch on the substance of the charge. We were referred to Adekoya Vs. State (2012) 6 SCM 58.
It was submitted that the Court below was right in relying on the confessional statement of the Appellant to convict and sentence him to death. It was submitted that the confession was consistent with the facts already proved.
It was submitted that the defence of provocation and self defence are not available to the Appellant because the Appellant on the fateful day got himself drunk, armed himself with a knife before he went to the house of PW2. We were referred to page 8  9 of the record of appeal. It was submitted that the Appellant had a premeditated intention to kill the deceased therefore the defence of provocation and self defence cannot avail him.
The Appellant, it was submitted, was not under apprehension of death.
It was submitted that the slap by the deceased and subsequent attack by the Appellant was not proportionate to the slap.
The Appellant, it was submitted, had no basis for invoking the defences of provocation and self defence because in his evidence in Court contained at page 111  113, he denied killing the deceased. Therefore the Appellant is blowing hot and cold at the same time in one breath saying he is entitled to the defence of self defence and provocation and in the next breath he is totally denying stabbing the deceased.
Be that as it may, the Court below it was submitted, considered the defence of self defence and provocation at page 125  126 of the record of appeal.
It was submitted that the Court is only bound to consider defences raised by evidence during the trial

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and not in the written address. We were referred to Apishe Vs. The State (1971) 1 All NLR, Taktta Vs. State (1969) 1 All NLR 270 and William Vs. IGP (1965) NMLR 470.
In his reply on point of law learned counsel for the Appellant submitted that issue 1 formulated by the Respondent is not from any of the grounds of appeal.
It was submitted that Respondent’s counsel led evidence of marriage of the PW2 in his address and that this is not allowed in law.
Apart from this, Respondents counsel in address gave evidence that the Appellant was drunk before going to the house of PW2 when there was no such evidence before the Court and this is not permitted in law.
The reply brief of the argument of the Appellant was not signed by learned counsel for the Appellant. All processes filed in Court are to be signed as follows:-
(1) The signature of counsel which may be any contraption.
(2) The name of the counsel clearly written.
(3) Who counsel represents.
(4) Name and address of the legal firm. See SLB Consortium Ltd Vs. NNPC (2011) LPELR  3074 SC at page 25 per Rhodes Vivour JSC.
As the Appellant’s reply brief of argument was not signed, it is not proper before the Court and should be discountenanced. It is hereby discountenanced.
An accused person is obliged to raise any objection to any formal defect to a charge before he takes his plea. SeeIbrahim Vs. The State (2015) 3 SCNJ 359 at 378 and Olatunbosun Vs. The State (2003) 7 SCNJ 383 at 436.
Section 200 of the Criminal Procedure Code provides as follows:
Charges may be as in the forms set out in Appendix B modified in such respects as may be necessary to adapt them to the circumstances of each case.
Section 201 of the Criminal Procedure Code (CPC) deals with contents of a charge. Section 202 of the Criminal Procedure Code deals with contents of a charge as regards time, place and person.
Although, it is difficult to pigeonhole the objection to the charge to any provision of the Criminal Procedure Code that was allegedly violated by the charge on which the Appellant was tried and convicted, it is not difficult to see that the complaints of the Appellant as regards the charge are baseless. As learned counsel for the Respondent rightly pointed out, the proposed charge was adopted by the Court below as the charge on the application of state counsel. It then became the charge and not a proposed charge any more. It is immaterial that the Court below did not proceed to delete the word proposed from the charge. When the state counsel applied immediately for the charge not the proposed charge to be read to the Appellant, learned counsel for the Appellant did not raise any objection either as to christening it the charge or its being read to the Appellant. The complaint in this Court that the Appellant was tried and convicted on proposed charge is baseless and it is taking technicality too far.
On the complaint that the charge was framed in 2000 even though the offence was allegedly committed in 2006, this is not borne out by the record of appeal. See page 3  7 of the record of appeal where the processes of Court including the charge are dated 2010 even though the correction is done in long hand and not initialled. The record of the Court has not been challenged by learned counsel for the

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Appellant. Apart from this, it will be standing logic on its head to hold that the Appellant was charged to Court in 2000 before the alleged commission of the offence in 2006. This argument too is baseless.
The learned counsel for the Appellant also complained that none of the three witnesses called by state testified as to time and place. These were contained in the charge read to the Appellant in Court. The Appellant has not shown that he was misled on the evidence led by the prosecution which contained no time and place of the alleged offence. What was important as regarded time and place of the alleged offence was the charge. In his testimony in Court, the Appellant did not indicate that he was misled by the omission in the evidence of prosecution witnesses of the time and place of the alleged offence. See pages 111 and 112 of the record containing the date of the alleged offence and the date the Appellant was arrested and the places of both events stated by the Appellant himself. The complaint in this regard too is unnecessary.
From the foregoing, issue 1 should be resolved in favour of the Respondent and against the Appellant. It is accordingly resolved in favour of the Respondent and against the Appellant.
Issues 2 and 5 are better taken together.
Once a confessional statement is admitted following a trial within trial proceeding, it becomes very difficult for an appellate Court to interfere on an appeal against its admissibility as the evaluation of evidence adduced at the said trial is based on the credibility of witnesses which duty is solely that of the trial Court as the appellate Court is not privileged to have seen the witnesses nor watch their demeanour. In such trial credibility of witnesses is based on demeanour. An appeal Court never has the advantage of seeking the witnesses. See Lasisi Vs. The State(2013) 3 SCNJ 328, Osuagwu Vs. The State (2013) 1 SNCJ 33 at 59, The State Vs. Rabiu (2013) 2 SCNJ 716 at 738 and FRN Vs. Borisade (2015) 1 SCNJ 60 at 81.
At page 94 of the record of appeal, the Court below stated thus:
On the whole it is my view that the accused freely and voluntarily made his confessional statement.
It was that Court that saw the DW1 in the trial within trial and despite the gory tales by him that his head was broken, and so on, the Court below was still of the view that the statement was voluntarily made. That Court was not carried away by the gory tales of the Appellant. This Court cannot fault the finding of the Court below that the statement was voluntarily made. We do not have the advantage of watching the demeanour of the witnesses. We therefore reject the invitation of learned counsel for the Appellant that we should find that the Court below erred in admitting the confessional statement of the Appellant.
Having found the statement admissible, the Court below was entitled to rely on it.
Issues 2 and 5 are therefore resolved in favour of the Respondent and against the Appellant.
Is the defence of provocation available to the Appellant? Section 222 (1) of the Penal Code provides as follows:
Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation
In Galadima Vs. The State (2012) 12 SCNJ 921 at 934 to 935 Aka’ahs JSC stated the principle of the law on provocation as follows:

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For a plea of provocation to avail the accused the burden is on him to establish:
(a) The act of provocation was grave and sudden.
(b) He must have been deprived of the power of self control.
(c) The mode of resentment, degree or extent of retaliation must bear a reasonable relationship or proportionate to the 
provocation offered.
The burden is discharged on balance of probabilities and not on proof beyond reasonable doubt.
And in Njokwu Vs. The State (2013) 2 SCNJ 147 at 169 Onnoghen JSC (as he then was) summarised the law as follows:
Provocation therefore consists of three elements, to wit:
(a) The provocative incident,
(b) Loss of self control both actual and reasonable; and,
(c) The retaliation, which must be proportionate to the provocation. See State Vs. Ibe (1965) NWLR 463…
See also Edoko Vs. The state (2015) 2 SCNJ 101 at 136 and Afosi Vs. The State (2013) 6 SCNJ 1 at 29.
The Court below considered the defence of provocation and found that it was not available to the Appellant. This is how the Court below in the judgment at page 126 of the record put it:
From the available evidence before the Court there is no evidence that the life of the accused person is in danger. Agreed the deceased slapped the accused, the degree of force used by him must be the same as that from which he defends himself. The accused did not use the same force to defend himself instead he used a knife and stabbed the deceased.
In the circumstances the defence of provocation cannot avail the accused person.
In Edoko Vs. The State (supra) the Supreme Court per Peter Odili JSC in similar circumstances found no defence of provocation available to the Appellant when the Appellant stabbed the deceased with a knife for punching the eye of the Appellant. This is what he said:
Clearly in the instant case, the defence of provocation could not have availed the appellant because a stab with a knife is poles apart from the punch in the eye.
Need I say more? There is nothing more to be said other than to say that the finding of the Court below that the defence of provocation is not available to the Appellant is sound and unimpeachable.
Apart from this, the Appellant in his defence/testimony in Court denied stabbing the deceased. This denial clearly took the matter outside the realm of the defence of provocation. This is because the Supreme Court per Onnoghen JSC (as he then was) in Njokwu Vs. The State (supra) page 168 stated as follows:
When a defence of provocation is raised by an accused person, he must of necessity admit the commission of the offence charged in the first place before going on to explain the circumstances in which it was committed and contending that due to the circumstances surrounding the commission of the offence of murder, the offence is reduced from murder to manslaughter.
On the testimony of the Appellant in Court therefore the defence of provocation does not arise as he denied stabbing the deceased. He said that the deceased killed himself.
Is the defence of self defence available to the Appellant?
Section 59 of the Penal Code provides that nothing is an offence which is done in the lawful exercise of the right of private defence.

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The defence of self defence is available only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. The accused will be entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm.
Generally raising the defence of self defence by an accused person charged with culpable homicide presupposes that the accused committed the offence. All that the accused person is saying is that he committed the offence in self defence. In other words, he is saying that he had no choice in the matter than to commit the offence; the reason being that if he did not do that, the deceased could have killed him.
Self defence that will have an impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable. The ingredients of self defence are:
(1) The accused person must be free from fault in bringing about the encounter.
(2) There must be present, an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(3) There must be no safe or reasonable mode of escape by retreat; and
(4) There must have been a necessity for taking life.
In order to sustain the defence of self defence all the above ingredients must exist and be established. See Afosi Vs. The State (supra) at page 26  28.
The defence of self defence if successful, is a complete defence or answer to the charge of culpable homicide. See Famakinwa Vs. The State (2016) 3 SCNJ 252 at 268.
It is apparent from the record of appeal that the Court below did not consider the defence of self defence. From the angle of the Appellant’s defence/testimony in Court it can be stated straight away that the defence of self defence is not available to the Appellant because he denied stabbing the deceased. From the perspective of the confessional statement of the Appellant and the evidence of PW2, the deceased slapped the Appellant and the Appellant pulled out a knife and stabbed the deceased. It cannot be said that the Appellant’s life was endangered by the slap from the deceased. It cannot also be said that the only option left for the Appellant was to stab the deceased with a knife. The Appellant did not show that he wanted to withdraw after the deceased slapped him. The first reaction of anybody standing with a lady who was not his wife was to withdraw when he received the slap particularly when she had told the man that she was married. See Famakinwa Vs. The State(supra) at page 268. The life of the Appellant was not endangered by the slap.
It is clear from the foregoing that issues 3 and 4 should be resolved in favour of the Respondent and against the Appellant. The two issues are therefore hereby resolved in favour of the Respondent and against the Appellant.
I now turn to issue 6.
Section 221 of the Penal Code under which the Appellant was tried and convicted provides as follows:
221. Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death:-
(a) If the act by which the death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.

For the prosecution to secure a conviction in a charge of culpable homicide punishable with death under the Penal Code, as in the instant case, the following ingredients must be established:

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1. The death of the deceased.
2. That the death resulted from the act of the accused person, and
3. That the accused person knew that his act will result in the death or did not care whether the death of the deceased will result from his act. See Adamu Vs. The State (2014) 4 SCNJ 191 at 207 to 208.
Any person charged with a criminal offence is presumed innocent until he is proved guilty and the burden of proof is on the prosecution. The burden is not discharged until the guilt of the accused is established beyond reasonable doubt. Even where an accused in his statement to the police admits committing the offence, the prosecution is not relieved of that burden. See Section 36 (5) of the 1999 Constitution, Section 135 of the Evidence Act 2011 and Abokokuyanro Vs. The State (2016) 3 SCNJ 183 at 206  207.
The Court below found as follows:
(1) That from the evidence of PW1 and PW2, it is clear that the death of the deceased actually took place.
(2) That it is clear from the evidence of PW1, PW2 and Exhibit 1 and 1a that the deceased died as a result of the injury inflicted from being stabbed with a knife in the stomach by the Appellant.
(3) That it is clear that the Appellant intended by stabbing the deceased in the stomach with a knife to cause the death of the deceased. See page 120 to 122 of the record of appeal.
The above findings cannot be faulted.
But learned counsel for the Appellant submitted that there were serious contradictions in the evidence of the witnesses called by the State.
The law does not insist that there must be no contradictions in the evidence of witnesses called by the same party. What the law expects is that the contradiction by the witnesses should not be material to the extent that they cast serious doubts on the case as a whole by that party or as to the reliability of such witnesses. SeeNwokoro Vs. Onuma (1999) 12 NWLR (Pt. 631) 342.
What the learned counsel for the Appellant referred to as serious contradictions are minor discrepancies as to whether the PW2 is/was a married woman or not. With respect to learned counsel for the Appellant, whether the PW2 is a married woman or not is irrelevant to the charge of culpable homicide on which she was called to testify. Her evidence was not discredited in anyway.
Learned counsel for the Appellant further argued that there were discrepancies in the name of the person who testified as PW2. The minor discrepancies as to the name of the Appellant could not affect the evidence of PW2. The appellant did not deny that she was the person he had gone to see and with whom he was when the deceased came and slapped the Appellant. He did not deny her even though she testified in Court that the Appellant stabbed the deceased. Her identity was not in question. The minor discrepancies as to her name therefore did not affect the evidence of this witness.
Learned counsel for the Appellant suggested that there was no medical evidence of cause of death. It is not a requirement of the law that the cause of death must be proved by medical evidence. All that is required to be proved is that the death of the deceased as appeared in this case was the direct result of the act of the Appellant to the exclusion of all other reasonable causes. See Babuga Vs. The State (1996) LPELR  701 SC at page 25.From the evidence of the PW2, after the deceased had been stabbed by the Appellant she supported him to the nearby police station. From the police station, the deceased person’s father and herself conveyed the deceased to the

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hospital and apparently he died before they reached the hospital. In the hospital, the doctor pronounced the deceased dead. In these circumstances it is reasonable to infer that the act of the Appellant was the direct result of the death of the deceased.
Issue 6 is also resolved in favour of the Respondent and against the Appellant.
All issues having been resolved against the Appellant the appeal lacks merit and should be dismissed.
The appeal is therefore hereby dismissed. The conviction and sentence of the Appellant by the Court below is affirmed.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.:I was afforded the opportunity of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, James Shehu Abiriyi, JCA.
I am at one with His Lordship’s line of reasoning and the conclusion reached that the appeal is unfortunately devoid of any jot of merit. I equally dismiss the appeal and affirm the judgment of the trial Court which convicted and sentenced the Appellant to death. May God have mercy on the soul of the Appellant.
SAIDU TANKO HUSAINI, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my Lord, Abiriyi, JCA with whom I am in agreement that this appeal lacks merit and same should be dismissed, the prosecution having proved their case against the appellant beyond reasonable doubt for culpable Homicide punishable with death.
The defence put up by the Appellant at the trial Court cannot avail him, hence the conviction and sentence of the Appellant is affirmed.

Appearances

Peter A. Aki Esq. For Appellant

AND

Mohammed Isa Usman Esq. Chief State Counsel, Ministry of Justice Gombe State. For Respondent

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