Mohammed Sarki Fulani M V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The Appellant herein was arraigned before the Kogi State High Court on a one count charge of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code. In order to prove its case, the prosecution called two witnesses.

PW1 is the Investigation Police Officer, Mawada Adamu. He testified that he recorded the statement of the Appellant, obtained a medical report on the deceased, four photographs and negatives of the deceased dead body and recovered the knife which was allegedly used in killing the deceased. These documents and the knife were admitted in evidence and marked Exhibits A, B, C, C1-C3, D, D1-D3 and E respectively. PW2, one John Egbunu Cornelius, a registrar in Court 2, High Court of Kogi State, where the appellant was initially arraigned, identified a copy of the evidence of Sgt Abdullahi Musa in the proceedings before that Court. Same was tendered through him and admitted as Exhibit F. Sgt Abdullahi had died before the case was started de novo.

In Exhibit A, the Appellant stated as follows:-

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“On the 02-07-2008 at about 1930 hrs I was coming from my labourer work in a place between Buge and Taji villages and I met one Muhamed Dankano on the way.

And the moment he saw me, he said, why I am looking at him dis-respectively I then answered him and said, which eye did he looked (sic) at me and saw me looking at him dis-respectively. It was there that he took a big plank and hit me with in my head twice, and in my hand. I then feld (sic, fell) down. Meanwhile the moment/managed to gate (sic, get) up he still hit me in my back. It was there that I removed my knife and starb (sic, stab) him in his neck and his stomach and he feld (sic, fell) down and was shouting. It was there that people came down and took me to the police outpost Budon in Budon district of Lokoja Local Government Area of Kogi State. I letter (sic, later) learned that Muhamadu Sani Dankano whom I starb (sic) with a knife had died.”

However, in his evidence in Chief during his trial, the Appellant stated among other things as follows:-

“When I left Buje small somebody came-out of the bush and hit me with stick on my head giving me three scars. Blood covered me when I fell and blood

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that was gushing out covered my face. I started calling his name Mohammed Sani Dan Kano, do you want to kill me” Then people started coming out. People who came out surrounded us and they stood there looking at us. He now removed his cutlass and stabbed me on my hand. When I fell down I stood up after he stabbed me, and I used the sickle that I used in harvesting my rice to stab him when I saw that people were not willing to separate us.”

The statement of the Appellant to the police and his testimony in Court, constitute the facts upon which this case was determined at the trial Court. In his judgment, the learned trial judge found that the evidence of the Appellant where he testified that the deceased stabbed him with a cutlass is an afterthought since he did not say so in Exhibit A when his memories were still fresh. The learned trial judge at pages 62 -63 of the printed record of this appeal held as follows:-

In this particular case, for a stick or a plank the accused apart from embarking upon using a knife decided in his own mouth to cut the deceased in the vital vulnerable parts of the body like the stomach and the neck.

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What reasonable inference could be drawn from this It is to be noted that he did not stab him at the hands holding the plank or stick in order to disengage the fight. Again, assuming this was not feasible in the circumstances; it was the case for the accused that there were onlookers and if he had ran into them that would have disengaged the fight even if they were buffoon onlookers from the forest. Further, even though the accused was exercising the right of private defence there was nothing from his evidence or Exhibit A to show that he was under any fear of death or constrained from running.

It is on the basis of the reasoning as extracted from the trial Courts judgment and reproduced hereinabove that the trial Court altered the charge from Section 221(b) of the Penal Code to Section 224 of the Penal Code and sentenced the Appellant to five years imprisonment.

Appellant was dissatisfied with the decision of the trial Court. Being aggrieved he appealed to the Court of Appeal, (the lower Court) and lost. The appeal herein is against the decision of the lower Court delivered on the 26th of June 2015. The Appellants notice of appeal filed on

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the 6th of July, 2015 contains six grounds of appeal.

Parties filed and exchanged briefs of argument.

Mr. J. O. Adele, learned counsel for the Appellant formulated six issues for determination of this appeal in the following terms:-

A. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they were of the opinion, that the Appellant had inflicted injuries on the deceased and that the Respondent had established the cause of death of the deceased since the assault on the deceased was so proximate to this death.

B. Whether the learned justices of the Court of Appeal, Abuja was legally right when they were of the opinion that the alleged Appellant confessional statement is not a mere narration of what happened which culminated to the charge brought against the Appellant and if the alleged confessional statement positively linked the Appellant to the commission of the crime of culpable homicide not punishable with death.

C. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they made a finding that the confessional statement met the necessary criteria for the ascription of

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probative value by the trial High Court and if apart from the said confession, the evidence of PW1 and Exhibit F have sufficiently corroborated the confessional statement.

D. Whether the learned Justice of the Court of Appeal, Abuja were legally right when they held the opinion that the non-signing of the alleged confessional statement of the Appellant by the police after the word of caution is not sufficient to render the confessional statement inadmissible but that what is material in that case is that the Appellant was cautioned and that the Appellant understood the caution before Appellant signed the said confessional statement.

E. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they formed and held the opinion that it is immaterial whether or not the photographs of the deceased victim Exhibits C, C1 C3 and their negatives Exhibits D, D1 D3 were tendered by PW1 (I.P.O.) but that what is material was whether the deceased died from stab wounds inflicted on him by the Appellant as per the medical and circumstantial evidence before the trial High Court notwithstanding or having regard to the issues

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that both Exhibits C, C1-C3 and Exhibits D, D1-D3 are inadmissible documentary evidence.

F. Whether the learned Justices of the Court of Appeal, Abuja were legally right when they held the opinion that the Appellant had exceeded the right of self defence and if the learned Justices of the Court of Appeal, Abuja in law were legally right when they were of the opinion that the private defence of self defence will not avail the Appellant in this case.

Mr. D. E. Abu, learned counsel for the Respondent, who is a senior legal officer, Ministry of Justice, Kogi State, formulated three issues for determination of this appeal. I reproduce them hereunder for clarity as follows:-

1. Whether the Court of Appeal sitting in Abuja was legally right when it affirmed the conviction and sentence of the Appellant by the trial High Court Lokoja Kogi State for the offence of culpable homicide not punishable with death.
2. Whether the Court of Appeal Abuja was legally right to have held the opinion that the Respondent had proved its case against the Appellant beyond reasonable doubt
3. Whether the Court of Appeal Abuja was legally

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right to have held the final opinion/final verdict that the Appellant has exceeded the right of self defence.

The issues formulated by both parties deal with assessment of evidence before the trial Court and ascription of probative value to such evidence. They are similar. The Appellant is the party aggrieved. I will therefore determine this appeal in the light of the issues formulated by the Appellant. Although the issues formulated by the appellant are verbose and incoherently drafted, I am enjoined to make use as best as I can of a brief that is inelegantly and/or badly drafted. For a brief of argument, even though inelegant and badly drafted is still a brief and the argument built on it will still be taken into consideration in conformity with Court’s attitude to do substantial justice.

See: Akpan v. State (1992) 6 NWLR (Pt.248) 439; Jeric (Nig) Ltd v. UBN Plc (2000) 4 NWLR (Pt.691) 447; Fasanya v. Adekoya (2000) 15 NWLR (Pt.689) 122.

Now, the law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person

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has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Section 138(1) and (2) of the Evidence Act 2011; Adamu vs A.G Bendel State (1986) 2 NWLR (Pt.22) 284; Akpan v. The State (1990) 7 NWLR (Pt.160) 101; Ojukwu v. Military Government of Lagos State (1985) 2 NWLR (Pt.10) 806.

Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from the above therefore, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 511 paras A C; Solola vs. The State (2005) 5 SC (Pt.1) 135.

Proof beyond reasonable doubt of a criminal charge does not mean proof beyond all shadow of doubt and it is not attained by the number of witnesses fielded by the prosecution.

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It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible but not in the least probable the case is proved beyond reasonable doubt. See Mufutau Bakare vs The State (1987) 3SC 1 at 32: Bolanle vs. The State (2005) 1 NCC 342 at 359.

In arguing the 1st issue for determination of this appeal, learned counsel for the Appellant submitted that there was no legally admissible evidence before the trial Court that showed that the Appellant inflicted injuries on the deceased. According to the learned counsel, the medical report, Exhibit B was tendered through the investigation police officer who is not its maker, as such it is an inadmissible documentary evidence and therefore commands no evidential or probative value. In aid, learned counsel cited Omega Bank Nig Ltd v. OBTC (2005) 8 NWLR (Pt.928) 547; UBN Plc v. Ishola (2001) 15 NWLR (Pt.735) 47.

Finally, learned counsel urged this Court to resolve this issue in favour of the Appellant. Surprisingly learned

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counsel for the Respondent in his brief did not address the argument contained in the Appellants brief in relation to the first issue. The Appellant is the aggrieved person, and he has forcefully relayed his reasons for disagreeing with the judgment. The Respondents duty is to counter the Appellants argument and not to embark on argument that is completely not attacking the Appellants submissions. Learned counsel for the respondent can only embark on his own argument in a cross-appeal. Where he is not the appellant, his duty is to counter the Appellants submissions.

Even if the Respondent had not filed a brief of argument, the Appellants argument as contained in his brief would have been considered in line with the current law applicable in the circumstance.

The issue raised here by learned counsel for the Appellant was adequately considered by the lower Court. The lower Court at pages 195-196 of the record of this appeal said:-

It is not mandatory that a medical report should only be tendered by the medical officer who prepared it unless the accused disagreed with the contents of

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the report or it is desirable to call the medical officer in the interest of justice.”

The lower Court made reference to Section 249(3)(a)(b) and (c) of the Criminal Procedure Code and Section 55(1)(2) and (3) and Section 83(1)(a) and (b) of the Evidence Act and concluded as follows:-

“These sections require that once a medical report is admitted in evidence, the report shall be read over to the accused who shall be asked whether he disagrees with any statement therein. Any such disagreement shall be recorded. If there is any such disagreement or if the Court suo motu considers that it is desirable to meet the ends of justice that such medical officer attends Court to give oral evidence, the Court is enjoined to summon the medical officer to appear as a witness.”

I totally agree with the lower Court on this point. Section 249(3)(a)(b) and (c) of the Criminal Procedure Code provides as follows:-

249 (3)(a) A written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any

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person who has been examined by him.

(b) On the admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court.

(c) If by any reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medial officer or registered medical practitioner shall attend and give evidence in person the Court shall summon such medical practitioner to appear as a witness.”

Although Section 249(3)(b) provides that the written medical report shall be read to the accused after its admission in evidence and he shall be asked whether he disagrees with any statement therein, where the accused person is represented by a counsel, the Court needs not ask the accused person if he agrees with any statement in the medical report. See A.G Difa vs The State (1977) NNLR 224. The contention of the learned Appellant’s counsel is that Exhibit B, the medical report was not tendered through its maker, as such it is inadmissible. Learned counsel is clearly wrong in his submission. By the

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provision of Section 249(3)(a)(b) and (c), a medical report is admissible even if it is not tendered through the maker. When the application to tender the medical report in evidence was made at the trial Court, learned counsel for the Appellant’s objection was not based on the Court’s failure to read Exhibit B to the appellant. The objection was that Exhibit B was not tendered through the maker. It is therefore my firm view that the lower Court is right to have held that Exhibit B was properly admitted and considered by the trial Court. Issue one is therefore resolved against the Appellant.

On the 2nd issue for determination of this appeal, learned counsel for the Appellant submitted that the lower Court was not legally right when it was of the opinion that the alleged confessional statement of the Appellant is not a mere narration of what happened which culminated to the charge brought against him.

Learned counsel made reference to the decision in Uwaekweghinya v. State (2005) All FWLR (Pt.259) 1930 and further submitted that the alleged confessional statement did not positively link the Appellant to the commission of the crime of culpable homicide not

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punishable with death as required by law, since same was retracted by the Appellant at the trial. It is the learned counsel’s contention that the trial Court would have carried out the necessary legal test in order to ascertain the truthfulness or otherwise of the confessional statement of the appellant.

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act 2011, Akpan vs State [2001] 7 SC (Pt.1) 124: Nwachukwu vs State (2002) 7 SC (Pt.1) 124: Onuoha vs The State (1987) 4 NWLR (Pt.65) 331: Shazali vs The State (1988) 5 NWLR (Pt.93) 164. Where a confessional statement had admitted all the essential ingredients of an offence, and shows unequivocally direct and positive involvement of the accused person in the commission of the crime alleged, the Court can rely on it alone to convict the accused. See Odua vs Federal Republic of Nigeria (2002) 5 NWLR (Pt.761) 615. However for the Court to rely on such confessional statement, there must be evidence that same was made voluntarily.

In the instant case, when the prosecution applied to

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tender the statement of the Appellant in evidence, learned counsel raised objection to the admissibility of the statement. His objection was not on the ground that the Appellant’s statement was not made voluntarily. This is what learned counsel said:-

We are objecting to the admissibility of this statement. In his evidence he said that the DCO read and also countersigned, but there is only one signature here and the name PC Mawada as the recorder. There was nowhere in the document where it is shown that it is interpreted to him in Hausa.”

The trial Court faulted learned counsel’s reason for objection and admitted the statement as Exhibit A. Was Exhibit A, a mere narration of what happened that culminated to the charge against the appellant which did not link the Appellant with the offence for which he was charged I do not think so. I have reproduced the relevant portion of Exhibit A elsewhere in this judgment. It is very clear that the Appellant stabbed the deceased with a knife on the neck and stomach knowing fully well that the areas he inflicted these injuries were vital areas of the body that could result to death. The appellant stated in Exhibit A that

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the deceased hit him with a stick. What then is the relationship between a knife and a stick In his evidence in Chief the Appellant admitted that he stabbed the deceased with a sickle. The trial Court disbelieved him in its judgment and held that the appellant stabbed the deceased with a knife. The Court of Appeal agreed with the trial Court. The Appellant’s evidence corroborated Exhibit A and clearly linked the Appellant to the crime for which he was charged, tried and convicted. The law is settled that appraisal of oral evidence and ascription of probative value to such evidence is the primary duty of a Court of trial and this Court would only interfere with the performance of that exercise if the trial Court has made improper use of the opportunity of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts. See Fashanu vs Adekoya (1974) 1 ALL NLR (Pt.1) 35 at 41; Eki v. Giwa (1977) 11 NSCC 96.

Clearly the evidence before the trial Court showed that the person that inflicted injuries on the deceased is the Appellant, and Exhibit B, the medical report shows that the deceased died from those injuries. The lower Court was

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legally right when it was of the opinion that the confessional statement is not a mere narration of what happened which culminated to the charge against the Appellant and also that the confessional statement has positively linked the Appellant to the commission of the crime for which the appellant was charged.

The second issue for determination of this appeal is also resolved against the Appellant.

In my consideration of the 2nd issue for determination of this appeal, I strayed into the 3rd issue which deals with ascription of probative value to Exhibit B and whether the evidence of PW1 and Exhibit F have sufficiently corroborated the confessional statement, I did in the process resolve the question raised in this issue. Even at the risk of repetition, I stated that Exhibit B is not a mere narration of what happened that gave rise to the charge against the Appellant at the trial Court and that the testimony of PW1 adequately corroborated the confessional statement of the Appellant. On that basis, issue three which is similar to issue two is also resolved against the Appellant.

On issue four, learned counsel for the Appellant submitted

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that the learned Justice of the Court of Appeal were not legally right when they held the opinion that the non-signing of the alleged confessional statement of the Appellant by the police after the word of caution is not sufficient to render the confessional statement inadmissible. Learned counsel cited and relied on the authority of Ogudu v. State (2012) ALL FWLR (Pt.629) 11 at 115 to urge this Court to hold that the failure of the Investigative Police Officer (IPO) to sign the cautionary word is fatal to the prosecution’s case. In the case of Ogudu vs State [supra) cited and relied upon by the learned Appellant’s counsel, there was an armed robbery incident on the Buruku, Kaduna road. The police arrested the Appellant and one Bright Chibuike. The Appellant made a statement at the Buruku Police Station, but this statement was not produced in Court at trial. Thereafter, the Appellant and Bright Chibuike were taken to the State C.I.D, Kaduna. There the Appellant made a statement, which according to the prosecution was a confessional statement. The Appellant denied making and signing the statement. Three alleged victims of the armed robbery

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made statements to the police, but their statements were not tendered at the trial and they never came to Court to give evidence. Despite the paucity of evidence, the learned trial judge found as a fact that the statement of the Appellant was a confession and based on the statement aforesaid, the Appellant was convicted. The appeal came all the way to this Court. My Lord, Rhodes-Vivour, JSC in his lead judgment, held as follows:-

“Relying on unsigned retracted confessional statement calls for extreme caution and very little or no weight should be attached to such a statement. After all an unsigned document is worthless. See Section 91 of the Evidence Act. I am firmly of the view that the Courts below were clearly in the wrong to sentence the Appellant to death solely on unsigned retracted confessional statement. If ever the need arose to find some independent evidence, outside Exhibit 1, this is the cases, sadly there is no evidence other than Exhibit 1. If the law is strictly applied as it ought to in cases that carry the death penalty, these facts call for caution. The adage that it is better for the nine guilty persons to go free than for one innocent person to be sent to his grave holds very true to this day.

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Clearly the facts in Ogudu vs State (supra) and the facts in the instant case are poles apart. In Ogudu case, the Appellant did not sign the confessional statement and there was no evidence outside the confession that made it probable that the confession was true.

In the instant case, the Appellant not only thumb printed after the cautionary words were written, he thumb printed at the end of the main statement and the endorsement in red ink by a superior police officer, Olumide before he finally thumb printed in the space provided for signature of witness/accused on the 4th of July, 2008. The Appellant in his evidence in chief corroborated his extra-judicial statement when he admitted fighting with the deceased and stabbing the deceased with a sickle. There is therefore clear evidence outside the confessional statement which makes it probable that the confessional statement of the Appellant is true.

The Appellant did not retract or resile from his confessional statement throughout the trial. A Court is enjoined to look for evidence outside a confessional statement where the

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maker retracts the statement and/or resiles from it. A free and voluntary confession of guilt made by an accused person, if it is direct and positive, is sufficient to sustain his conviction without any corroborative evidence as long as the Court is satisfied with the truth of the said confession. The Appellant’s confession in the instant case is positive and direct and is such that the trial Court could act on it. See Yesufu v. State(1976) 6 SC 167; Koiki v. State (1976) 4 SC 107; Ntaha v. State (1972) 4 SC 1; Ikemson v. State (1989) 3 NWLR (Pt.110) 455; Obasi vs. State (1965) NWLR 119; Egbogbonome vs. State (1993) 7 NWLR (Pt.306) 383.

Even if the confessional statement of the Appellant was wrongly admitted by the trial Court, same cannot be a ground for reversal of the decision of the lower Court, since its admission cannot reasonably affect the said decision. Section 251(1) of the Evidence Act provides as follows:-

“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court of Appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision

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would have been the same if such evidence had not be admitted.”

I have stated clearly that even without Exhibit A, the Appellant’s evidence before the trial Court amounts to an admission of the offence for which he was charged, tried and convicted. The 4th issue for determination of this appeal is accordingly resolved against the Appellant.

On issue five, learned counsel for the Appellant submitted that the lower Court was wrong in affirming the opinion of the trial High Court that it is immaterial whether or not the photographs of the deceased victim, Exhibits C, C1-C3 and their negatives, Exhibit D, D1-D3 were tendered and admitted in evidence. According to learned counsel, the exhibits were inadmissible as they were not tendered by the photographer that produced them. According to the learned counsel, the lower Court was wrong in law to have attached weight to the said pictures and their negatives.

Finally, learned counsel urged this Court to resolve the issue in favour of the Appellant. I wish to state straight away that even if the pictures and their negative were not tendered and admitted in evidence, there was sufficient

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evidence to ground the Appellant’s conviction. This is by virtue of Section 251(1) of the Evidence Act. The confessional statement of the Appellant, coupled with his evidence before the trial Court constituted sufficient evidence upon which the Appellant was found guilty. To now consider argument on Exhibits C, C1-C3 and D, D1-D3 will result in mere academic exercise, which I am not prepared to get involved. This issue is resolved against the appellant.

On the last issue for determination of this appeal, learned counsel for the Appellant vehemently submitted that the learned Justices of the Court of Appeal were not legally right when they upheld the finding of the Court of Appeal that the Appellant had exceeded the right of self defence. According to the learned counsel, the Appellant did not exert any force more than the force the deceased exerted, as such the appellant is entitled to the defence of self defence. In aid, learned counsel cited Njoku v. State (2003) 2 NWLR (Pt.1339) 548. Learned counsel made reference to the Appellants testimony at page 21 lines 3 12 of the record of this appeal and contended that the

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deceased had wanted to kill the Appellant with a knife for which the Appellant also defended himself by holding a sickle. In a further argument, learned counsel submitted that the learned justices of the Court of Appeal Abuja Division misconceived this issue when they held that the defence of self defence was an afterthought even when the defence of self defence was timeously and correspondingly raised by the Appellant as required by law. Finally learned counsel urged this Court to resolve this issue in favour of the Appellant. Learned counsel for the Respondent joined issue with the learned counsel for the Appellant on this issue. In his argument learned counsel for the Respondent submitted that the learned justices of the lower Court were right when they affirmed the decision of the trial Court that the Appellant had exceeded the right of self defence. Learned counsel made reference to Exhibit A which was made when the Appellant’s memory was still fresh, and submitted that the Appellant did not disclose that the deceased stabbed him. It is learned counsel’s contention that the Appellant’s evidence before the Court that he was stabbed with cutlass by the deceased is an

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afterthought. Learned counsel urged this Court to resolve this issue against the Appellant because he failed to prove that he was in great danger and the only way to eradicate the danger was to kill the deceased.

The learned trial judge in his judgment on the issue of private defence said:-

“As per the facts which led to this incidence, it was the case of the accused in his statement to the police (Exhibit A) that the deceased first him with a plank which caused him to fall down and that when he managed to get up he hit him again at his back with the same plank and he said further:-

“It was there that I removed his my knife and stab him in neck and stomach and he fell down and was shouting…

The cuts on the deceased as per Exhibits C, C1 C3 confirms this. However in his evidence before the Court, he said of the second attack by the deceased, that the accused used his cutlass to stab him while then used a sickle to stab him.

I am of the view that this later evidence about the deceased stabbing him with a cutlass is an afterthought, since it eludes Exhibit A, his statement to the police, which was made when his memories were fresh.

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Learned counsel for the Appellant is a minister in the temple of justice. His duty, first and foremost is to assist the Court in arriving at a just decision. Learned counsel should not allow himself to become a clog in the wheel of justice. I have observed that where the appellant made admission, learned counsel tended to work towards falsifying such admissions. Appellant said he stabbed the deceased with a sickle, but learned counsel in his submission stated in the Appellant’s brief of argument that the Appellant only held the sickle in defence of himself. The trial Court did clearly state that the Appellant’s evidence in Court was an afterthought and on the basis of Exhibit A, the Appellant went out of his right of private defence when he stabbed the deceased with a knife, which is disproportionate with an attack with sticks by the deceased. Learned counsel for the Appellant wants this Court to believe that the force used by the deceased is greater than the force deployed by the Appellant. This is clearly not true, judging from the decision of the trial Court which was upheld by the lower Court at 217 – 218 of the

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record of appeal as follows:-

“It is significant that the accused did not mention in his statement to the police that he stabbed the deceased because the deceased stabbed him first on his hand and chest, as he stated in his evidence on oath. I must come to the irresistible conclusion therefore, as held by the trial Court, that this defence was an afterthought…The Appellant having used a knife as against a plank, then of course there is no way he can be heard to raise this defence.”

From the analysis on this issue and for the simple fact that there is no evidence that the Appellant was under attack from the deceased which caused reasonable apprehension of death or grievous hurt which apprehension could only be removed only by killing the deceased, I am of the firm view that the lower Court was right when it affirmed the decision of the trial Court that the Appellant had exceeded his right of self defence and was not entitled to rely on the defence of self defence. This issue is also resolved against the Appellant.

Having resolved all the six issues submitted for determination of this appeal by the Appellant against him,

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this appeal shall be and it is hereby dismissed.

The decision of the lower Court which affirmed the decision of the trial Court, is hereby affirmed.

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SC.501/2015