ADEYEYE v. THE STATE

OJO ADEYEYE V. THE STATE

 (2013) LPELR-19913(SC)

           

In The Supreme Court of Nigeria

On Friday, the 1st day of February, 2013

SC.305/2010

Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria

SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

Between

OJO ADEYEYE

Appellant(s)

AND

THE STATE

Respondent(s)

RATIO DECIDENDI

1. APPEAL -  INTERFERENCE WITH CONCURRENT FINDINGS OF TWO LOWER COURTS: When the Appellate Court will interfere with the concurrent findings of two Lower Courts

"Firstly, as rightly submitted by learned respondent counsel, the two courts have made concurrent findings on appellant's guilt and accordingly convicted and sentenced him. It is often more difficult to have concurrent findings set aside than it would a decision of an only court. All the same, such decisions if shown to be perverse can, on further appeal, be set aside. See Akpabo V. State (1994) 7 NWLR (pt 359) 635 and Ejikeme v. Okonkwo (1994) 8 NWLR (Pt 362) 266. Secondly, the determination of this appeal requires re-evaluation of the evidence on the basis of which the two courts made their findings. It is trite that the duty of evaluating evidence led remains primarily that of the trial court particularly where the exercise rests squarely on the credibility of the witnesses whose evidence is being considered. An appellate court is, however, equally entitled to evaluate evidence where the trial court either failed to take advantage of the opportunity it had in the course of trial of seeing the witnesses and observing their demeanour or took extraneous matters in arriving at its conclusions from the exercise. See Mogaji v. Odofin (1978) 4 SC 91; Okonji v. State (1987) 1 NWLR (52) 659 and Kalio v. Woluchen (1985) 1 NWLR (pt 4) 610. From the judgment of the trial court earlier reproduced herein, I am of the firm view that the lower court's decision that in evaluating the evidence led, the trial court has fully discharged its duty unassailable. In Ige v. Akoju (1994) 4 NWLR (pt 340) 535 at 543, this court observed as follows:- "While it is true that the demeanour of a witness may not be a guide to the truth, the conclusions of a trial court judge on how a witness behaved in the box should not easily be disregarded" See also Kasa V. State (Pt 344) 269." Per M. D. MUHAMMAD, J.S.C. (Pp. 46-47, paras. D-E) (...read in context)

2. CRIMINAL LAW AND PROCEDURE -  SELF DEFENCE: Guiding principles of self defence

"As a matter of fact, the first two ingredients are not in question. In otherwords, it is not in any doubt that the deceased is dead. This is established with his body having been found. The fact also that the appellant's act caused the deseased's death is not in issue especially with the appellant having so confessed to the killing by means of one blow by machete cut strike. It is the third ingredient therefore that is the subject of contention wherein the appellant pleads the defence of self defence and hence the reason for the deceased's death. The relevant legislation dealing with such defence is Section 286 of the Criminal Code which reproduction state 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. If 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 any such force on the assailant as is necessary for 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 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. (Pp. 16-18, paras. F-C) (...read in context)

3. CRIMINAL LAW AND PROCEDURE -  SELF DEFENCE: What an appellant must show for the defence of self defence to avail him

"In this case, there is no credible evidence that the life of the appellant was either in danger or that he wielded his matchet in order to save himself, on a reasonable belief, from imminent death, or danger. From all indications, the appellant had conceived the intention to kill and therefore snared the deceased. The question of self defence, I again repeat, is from all indication an after thought. For the defence to avail the appellant he must satisfy the requirement that:- a) There was an act of grave and sudden provocation. b) There was the loss of self control both actual and reasonable. c) The retaliation must also be proportionate. In otherwords, all the three elements must co-exist and within a reasonable time. In determining what should constitute provocation, the court does not consider the susceptibilities of the accused. See Olubu V. The State (1930) 1 NCR 309 at 321. The guiding principles of self-defence, I further repeat, are necessity and proportion. If the accused can show necessity for his conduct on the facts as he reasonably believed them to be a valid defence sufficient, his acquittal can be made. See R. V. Nwibo (1950) 19 NLR 124. If however the threat offered is disproportionate with the force used in repelling it, then the defence cannot avail the accused. See also the case of R. V. Onyeamaizu (1958) N.R.N.L.R 93. The defence is weakest where the position of the victim, as in this case, is weaker than that of the accused. In such a situation the issue of self-defence does not arise and the defence is not available as rightly held by the lower court in affirming the judgment of the trial court." Per OGUNBIYI, J.S.C. (Pp. 27-28, paras. C-C) (...read in context)

4. CRIMINAL LAW AND PROCEDURE -  ONUS OF PROOF: On whom rests the onus of proof in criminal cases

"The onus of proof in criminal cases and the instant is such, remains on the respondent. The onus is static through out. It does not shift unto the appellant. See Woolmington v. DPP (1935) AC 462, Ogbu Nwagu V. State (1966) ALL NLR 207 at 208." Per M. D. MUHAMMAD, J.S.C. (Pp. 42-43, paras. G-A) (...read in context)

5. CRIMINAL LAW AND PROCEDURE -  SELF DEFENCE: Basis for legal right to kill in self-defence

"The legal right to kill in self-defence cannot be made dependant upon the temperament or phlegmatic nature of the individual killer. For those who claim to have exercised this legal right to kill, the law insists upon one standard. It is the standard of a reasonable man. See again the case of Udofia v. The State supra. For the defence to be available and to exclude criminal responsibility the accused must face imminent apprehension of death or grievous harm from the victim. See R. v. Onyeamaizu (1953) NRNLR. 93." Per OGUNBIYI, J.S.C. (P. 25, paras. D-F) (...read in context)

6. CRIMINAL LAW AND PROCEDURE -  PROOF OF MURDER: Essential ingredients the prosecution must prove beyond reasonable doubt in a charge of murder

"The appellant, as earlier stated, was charged, tried convicted and sentenced to death for murder contrary to Section 319 of the Criminal Code. It is well settled that in a charge of this nature, the prosecution must, as a matter of obligation, prove the following three essential ingredients beyond reasonable doubt:- 1. That the deceased died. 2. That it was the act of the accused that caused the death of the deceased. 3. That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that death or grievous bodily harm would be the probable consequence of that act. Plethora of case law establishing the basic requirements will serve to illustrate the point. The cases are: Ndukwe v. The State (2009) 2 SCM 147 at 167; Abogede v. The State (1996) 5 NWLR (pt 448) 270; Nwosu v. The State (1986) 4 NWLR (Pt. 35) 384; Ogba v. The State (1992) 2 NWLR (Pt 222) 164; and Daniels v. The State (1991) 8 NWLR (Pt 212) 715." Per OGUNBIYI, J.S.C. (P. 16, paras. A-F) (...read in context)

7. JUDGMENT AND ORDER -  FINDING OF A COMPETENT COURT: Effect of a finding of a competent Court

"The law is that a finding of a competent court persists until it is set aside on appeal. Having not appealed against the trial court's finding on the issue, the appellant could not have legitimately raised the same defence at the court below. See: Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt 81) 129." Per M. D. MUHAMMAD, J.S.C. (P. 48, paras. E-F) (...read in context)

CLARA BATA OGUNBIYI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of T. O. Awoloye J. of the High Court of Justice Ilesha Osun State in charge No. HIL/12C/99. The State V. Ojo Adeyeye delivered on the 26th July, 2001 wherein the accused was tried, convicted and sentenced to death on a one count charge of murder contrary to Section 319 of the Criminal Code Cap 30 Vol. II, Laws of Oyo State 1978 as applicable in Osun State of Nigeria. The offence for which the accused was charged reads as follows:

 "STATEMENT OF OFFENCE

 MURDER: Contrary to Section 319 of the Criminal Code Cap 30 Vol. II Laws of Oyo State of Nigeria now applicable to Osun State.

 PARTICULARS OF OFFENCE

 OJO ADEYELE 'M' on about 5th day of February, 1997 at about 7.30 hours at Iwori Aba Odole village in the Ilesha Judicial Division murdered one Babalola Ezekiel 'M'."

 Upon the charge being read to the accused, he pleaded not guilty. The case proceeded to be heard with the prosecution calling seven witnesses while the accused gave evidence in his own defence. In the course of the trial the accused's statements, a medical report, a dane gun and cutlass were all tendered and admitted as exhibits. Both counsel for the prosecution and accused respectively later addressed the court and in a considered judgment delivered on the 26th July, 2001 the learned trial judge found against the accused, who was accordingly convicted of murder and sentenced to death by hanging.

 The facts of the case briefly are that the appellant and deceased who had a common boundary demarcating their farmlands had had a disagreement in the appellant's farm land and in the course of which according to the appellant, who was the only eye witness, the deceased had pointed his dane gun at him threatening to kill him. The appellant knocked off the dane gun from the deceased with his cutlass and a physical fight ensued between them. In the course of the scuffle the deceased, the appellant alleged, appeared to have gained the upper hand and that the appellant not knowing what else to do struck the deceased on the neck with his cutlass and he died instantly. The appellant admitted digging the ground and burying the deceased. An autopsy report tendered revealed that the deceased had died as a result of injury sustained from the cutlass blow.

 In his two extra judicial statements to the police (Exhibits 'B' and 'E') and also his statement in court, the appellant admitted killing the deceased but however, stated unequivocally that he did so in self defence when the deceased attempted killing him with a dane gun.

 None of the respondent's witnesses or any other at all was an eye witness to the alleged crime except the appellant himself. The trial court rejected the appellant's defence of self defence and proceeded to convict and sentence him as charged.

 The appellant was dissatisfied with the judgment of the trial court and consequently appealed to the Court of Appeal, which on the 25th March, 2012 delivered its judgment and dismissed the appellant's appeal and affirmed his conviction and sentence by the trial court.

 The appellant again was dissatisfied with the outcome at the Court of Appeal and has now appealed against the judgment to this court vide a notice of appeal dated and filed 21st April, 2010. Two grounds of appeal were raised.

 In accordance with the rules of this court, briefs were settled and filed on behalf of both parties by Ikenna Okoli Esq. and Biodun Badiora Esq. PSC (MOJ) Osun State for the appellant and respondent respectively.

 On the 8th November, 2012 at the hearing of the appeal, the respective briefs were adopted and relied upon. The learned appellant's counsel on the one hand urged that the appeal be allowed, the judgment of the lower court set aside and the appellant should be discharged and acquitted. On the other hand however, the respondent's counsel urged that the appeal be dismissed as it lacks merit.

 From the two grounds of appeal the appellant formulated a lone issue which was also adopted by the respondent as follows:-

 "Whether the Court of Appeal was right in affirming the judgment of the trial court to the effect that the defence of self defence was not available to the appellant in all the circumstances of this case?

 The learned appellant's counsel in his submission on the foregoing issue remarked that the Justices of the lower court were wrong in affirming the judgment of the trial court wherein they held that the appellant could not rely on the defence of self defence; that the justices must have, in the circumstance, misconstrued the law governing the defence of self defence and took some extraneous factors into consideration. The counsel cited and relied on the authorities of Laoye V. State (1985) 2 NWLR (pt. 10) 862, Ahmed v. State (1999) 12 NWLR (Pt. 612) 641 and also the provision of Section 286 of the Criminal Code which counsel argued would reveal the error committed by the lower court; that the defence put forward by the appellant was neither rebutted nor was his testimony discredited by the prosecution; that the appellant had established the ingredients of the defence of self defence as provided by the law.

 Counsel further submitted that in a heat of the moment, the appellant could not be expected to weigh to a nicety the exact measure of necessary defensive action or to pick and choose which part of the deceased's body he would strike a blow; that the appellant wanted to save his life which he believed was in danger and hence his striking the deceased only once. He argued further that if the killing was premeditated, the appellant would have dealt the deceased several machet cuts for purpose of making sure that the deceased died. The fact that the accused buried the body of the deceased and told nobody of the incident counsel argued, cannot be conclusive that the killing was premeditated and therefore not in self defence. With the appellant having raised the defence of self defence he continued, the onus did not lie on him to prove such defence but on the prosecution to disprove. The learned counsel called in aid the cases of Baridam v. State (1994) 1 NWLR (pt. 320) at 262; Ozaki v. State (1990) 1 NWLR (Pt. 124) 92 at 108 and Uwagboe v. State (2007) 6 NWLR (Pt 103) 606 for purpose of establishing that the appellant in the case at hand had no intention to kill the deceased.

 On the question of discrepancies in the extra judicial statements by the appellant and his testimony in court, which is not conceded, the counsel argued that such discrepancies, if any, were not of a nature as to render his plea of self defence unacceptable.

 The learned counsel further submitted also that even if there were noticeable discrepancies between the appellant's extra judicial statement to the police and his testimony in court, there is one thread or theme that runs through the appellant's testimony in court and Exhibits 'B' and 'E'. In otherwords, that the appellant had successfully raised a defence of self defence; that Exhibits 'B' and 'E' are not in conflict with his testimony in court.

 In summary, the learned counsel therefore urged the court to hold that the defence of self defence was available to the appellant in the circumstances. Furthermore that the respondent herein did not disprove the defence put forward by the appellant; that the court should therefore set aside the judgment of the lower court and discharge and acquit the appellant in the circumstance.

 On behalf of the respondent, his counsel, for purpose of recapitulation outlined a graphic summary of those facts which were not in dispute and related them closely to Section 286 of the Criminal Code Law on defence of self defence as well as authorities establishing the principle. The counsel in his further submission also implored us to seriously take into account the fact of concurrent findings by the court below and the trial court which in legal parlance speak volume; that the court below was therefore right in upholding the decision of the trial court, in view of the position and direct confession by the appellant that he killed the deceased; that the appellant did confess that he killed the deceased because of a land dispute. The counsel for purpose of buttressing his submission cited the cases of Nwede v. The State (2007) 5 ACLR 17 at 26, Omoregie V. The State (2008) 12 SCM (Pt. 2) 599 at 611 and Udofia V. State (1984) NSCC 836 at 850 a decision of this court; that the autopsy result should also be taken into specific account where the blood vessels supplying the head and neck of the deceased were all severed and as a consequence the appellant cannot therefore be exonerated from criminal responsibility. The learned counsel re-echoed the cases of Uwaekweghinya v. State (2005) 9 NWLR (Pt 930) 227 and Nwuguru v. State (1991) 1 NWLR (pt 165) 41 which were relied upon by the appellant and remarked that they are not helpful to his case. The counsel in the result urged therefore that the court should hold that the defence of self - defence put up by the appellant has been disproved by the prosecution and to uphold the judgment of the lower court.

 These are therefore the arguments and submissions advanced by both counsel in the appeal.

The appellant, as earlier stated, was charged, tried convicted and sentenced to death for murder contrary to Section 319 of the Criminal Code. It is well settled that in a charge of this nature, the prosecution must, as a matter of obligation, prove the following three essential ingredients beyond reasonable doubt:-

 1. That the deceased died.

 2. That it was the act of the accused that caused the death of the deceased.

 3. That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that death or grievous bodily harm would be the probable consequence of that act.

 Plethora of case law establishing the basic requirements will serve to illustrate the point. The cases are: Ndukwe v. The State (2009) 2 SCM 147 at 167; Abogede v. The State (1996) 5 NWLR (pt 448) 270; Nwosu v. The State (1986) 4 NWLR (Pt. 35) 384; Ogba v. The State (1992) 2 NWLR (Pt 222) 164; and Daniels v. The State (1991) 8 NWLR (Pt 212) 715.

As a matter of fact, the first two ingredients are not in question. In otherwords, it is not in any doubt that the deceased is dead. This is established with his body having been found. The fact also that the appellant's act caused the deseased's death is not in issue especially with the appellant having so confessed to the killing by means of one blow by machet cut strike. It is the third ingredient therefore that is the subject of contention wherein the appellant pleads the defence of self defence and hence the reason for the deceased's death. The relevant legislation dealing with such defence is Section 286 of the Criminal Code which reproduction state 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.

 If 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 any such force on the assailant as is necessary for 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 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.

 The learned trial court judge on the record I hold, meticulously reviewed the defence of self defence put forward by the appellant and thereafter held thus on the defence and said:-

 "I have carefully watched the demeanor of the accused in the witness box when he gave evidence before me. I am convinced that he did not say the truth when he said that the deceased after knocking him down retrieved the dane gun and tried to shoot him again hence he killed the deceased. This aspect of his evidence was not narrated in his memory at the Police station. Rather in his statement at the police station he said he killed the deceased because of the dispute on land. I strongly believe that the accused was the aggressor and assailant in this case and so defence of self-defence is not available to him. It is clear that at the stage the accused killed the deceased he was not under any danger or threat of death since the gun was already knocked off the hand of the deceased.............

 The accused must believe on reasonable ground that he cannot otherwise preserve his own life other than killing of the deceased before the defence of self defence can avail him.

 In my view the defence of self defence is not available to the accused. He maliciously killed the deceased."

 The court below in affirming the decision of the trial court on the same point also held and said:-

 "In the present case on appeal, allegations of theft on the deceased's farm which shares the same boundary had been made against the appellant which he denied but his statement to the police is explicit; that he killed the deceased in order to put to rest the quarrels and confrontation that both had been having over land ownership. This confession to my mind being voluntary is quite direct and positive to rule out the defence of self defence and to ground a conviction for the murder of the deceased.

 .........The severity of the machet cut coupled with where the machet cut was directed i.e. the neck of the deceased are not consistent with the defence of self defence but a pre-meditated intention to either kill the deceased or cause him grievous bodily harm. That he dug a pit in the ground where he buried the deceased's body which he covered with cocoa leaves and told nobody of the killing was an attempt to hide his crime. I do not find the findings of the lower court perverse, unreasonable or unsupportable by evidence or circumstances of this case and as such I have no reasons whatsoever to disturb the findings."

 Suffice it to say that from the totality and perusal of the record of appeal, the following facts are expressive and not in dispute since there is no appeal against the findings.

 1. The appellant killed the deceased by matcheting him.

 2. The fatal blow inflicted by the appellant caused a 10 cm by 6 cm laceration on the side and back of the head extending from left ear to the right side of the back of the neck and the blood vessels supplying the head and neck region were all severed.

 3. The appellant made 2 statements to the police (Exhibits 'B' and 'E') wherein he stated that he knocked off the dane gun from the hand of the deceased and that in the course of the struggle, the appellant picked his cutlass and cut the deceased's head.

 4. There were allegations of theft of crops on the farm of the deceased made by him against the appellant before the incident.

 5. The appellant in his statement of 11/2/97 (Exhibit 'E') said he killed the deceased because of farmland that has been a source of problem between him and the deceased.

 6. The appellant's testimony in court that the deceased regained his gun after it was knocked off and that he was killed in self defence when he tried to shoot him again was rejected by the trial court and the court below.

 The reproduction of Section 286 of the Criminal Code Law (supra) is very explicit and specific and which is not ambiguous. In otherwords, for the defence of self defence to avail an accused person, the nature of the assault on him must be such as to cause reasonable apprehension of death or grievous harm. The extent of force which could be acceptable as a defence must be from the believe on reasonable grounds that death or grievous harm was the only last resort that must be used as a defence.

 A recapitulation of the appellant's extra judicial statements from Exhibits 'B' and 'E' is very revealing when compared with his testimony in court. For instance in his statement to the police made when the incident was still very fresh in his memory he said:-

 "Ezekiel Awodiya put his dane gun in his heart and said that he will kill me and I used my cutlass in my hand to hit his dane gun in his hand, the dane gun then fell down from his hand. There Baba Ezekiel Awodiya greaped (sic) me and we started fighting in my farm as both of us were fighting in the farm for almost one hour and Baba Ezekiel Awodiya over-powered me and I cannot do any other (sic) along to defend myself. Then I took my cutlass in the ground and cut his head. That is where (sic) he died instantly." (Emphasis is mine)

 Also on the 1st February, 1997 the appellant made another statement to the Police and said:-

 "Both myself and the deceased have common boundary in our farm. I did not entered (sic) deceased farm before and he did not cut (sic) me in his farm stealing his properties before. I only kill him because of the farm land that use to cause anything between me and himself." (Emphasis is also mine).

 The appellant in his evidence while testifying before the trial court, changed his story wherein he stated for the first time that the deceased succeeded in retrieving his gun which he tried to use again while he was lying down on the appellant, who consequently "threw the cutlass to prevent the man from shooting" him, and that it was in the process that the cutlass hit the deceased.

 The foregoing testimony was rejected by the trial court and rightly too I hold because it was not stated in the appellant's extrajudicial statement when the matter was fresh in his memory; the appellant had also earlier contested that he killed the deceased because of dispute on land. A similar related authority is again the case of Omoregie V. The State supra, wherein the court rejected as an after thought a piece of evidence by the appellant which came up only during his testimony in court and which was never stated in his first extra judicial statement. Being on all fours with the case under consideration, the piece of evidence was meant to make the defence of self defence available to the appellant. In the case under reference, both the Court of Appeal and this court upheld the rejection of the piece of evidence by the trial court.

 Also in the case of Udofia V. State (supra) the appellant in his statement to the police said that:-

 "Immediately I came home from under the bed Raymond seeing me jumped from the bed and gripped me and we started to struggle in the darkness ... I then lay my hand on my cutlass and started cutting towards the direction which inflicted several machet cuts all over his body."

 In his testimony in court however, the appellant in the same case said:-

 "When the deceased gripped my neck the cutlass fell, I then fell on the cutlass at that time I did not know how my hands got hold of the cutlass. I then saw the deceased ran out."

 This court upheld the findings of the lower court and that of the trial judge that the plea of self defence put up by the appellant was an after thought. Further still and in the same case, this court re-iterated also and held that such a defence will not be available where if on the accepted evidence it is not necessary or where the threat offered is disproportionate with the force used in repelling it. In otherwords, the defence of self defence will not avail an appellant who stabbed a deceased person who was unarmed and fighting with his bare hand. See the case of Ahmed v. The State (supra).

 In the instant case, the prevailing evidence revealed that the gun was already knocked off the hand of the deceased when the machet cut was inflicted on him. The autopsy report also revealed "a 10 cm by 6 cm deep laceration at the side and back of the head extending from the left ear to the right side of the back of the neck. The blood vessels supplying the head and neck were all severed." The facts of the location of the injury and its depth on the corpse of the deceased as established by P.W1's testimony are more consistent with an injury inflicted from the back with full force and not one inflicted by a person who was on the ground while the victim was on top of him and when he merely threw the cutlass as sought to allege by the appellant.

 The appellant's learned counsel in his submission was emphatic and resolute wherein he relied heavily on the cases of Laoye V. State and Ahmed V. State (supra) with the aim of rationalizing the use of the cutlass by the appellant in the instant case. For all intent and purpose, the two cases under reference are remarkably distinguishable from the case at hand.

 For instance in Laoye's case, the deceased had used a knife on the appellant before he was killed by him. Also in Ahmed's case, the trial court did not examine the defences available to the accused. The place where the incident happened was also in doubt and hence the conviction of the accused for manslaughter. It was also shown on the prosecution's case that the evidence of its witnesses were contradictory.

The legal right to kill in self-defence cannot be made dependant upon the temperament or phlegmatic nature of the individual killer. For those who claim to have exercised this legal right to kill, the law insists upon one standard. It is the standard of a reasonable man. See again the case of Udofia v. The State supra. For the defence to be available and to exclude criminal responsibility the accused must face imminent apprehension of death or grievous harm from the victim. See R. v. Onyeamaizu (1953) NRNLR. 93.

 Objectively, the facts of the case under consideration did not show that the accused/appellant was faced with such situational circumstance to have warranted the vitious attack. The learned appellant's counsel in his submission also relied heavily on the case of Uwaekweghinya V. State and Nwuguru V. State under reference supra to show that the defence of self defence was available to the accused.

 With due respect to the learned appellant's counsel the circumstance of the case in issue is remarkably distinguishable from those cases cited under reference.

 In Uwaekweghinya's case for instance, the deceased who was armed with cutlass, iron rod and stick hit the appellant with stick twice while on the ground and was not stopping the attack when the appellant defended himself by matcheting him. Also in Nguru's case the appellant went to report himself to the police and made a statement. There was no other evidence from the prosecution apart from the statement. There was also no confession of motive for the killing. Unlike the two cases under reference the appellant in the case presently under consideration confessed that he killed the deceased in order to put an end to the land dispute between them. There is as a matter of fact the evidence of allegation of theft on the deceased's farm which was made against the appellant. A further evidence also revealed that the deceased and appellant were fighting with bare hands when the fatal blow was inflicted with the retrieved cutlass by the appellant. In the circumstance of the case, the appellant should not be allowed to take cover under this defence after having taken an undue double advantage of the deceased.

 The test is objective and not subjective. It therefore must be that of a reasonable man and the act which resulted in the killing ought to be the reaction of a reasonable person placed in similar situation. See Palmer V. R. (1971) 55 cr. App. C 223.

In this case, there is no credible evidence that the life of the appellant was either in danger or that he wielded his matchet in order to save himself, on a reasonable belief, from imminent death, or danger. From all indications, the appellant had conceived the intention to kill and therefore snared the deceased. The question of self defence, I again repeat, is from all indication an after thought.

 For the defence to avail the appellant he must satisfy the requirement that:-

 a) There was an act of grave and sudden provocation.

 b) There was the loss of self control both actual and reasonable.

 c) The retaliation must also be proportionate.

 In otherwords, all the three elements must co-exist and within a reasonable time. In determining what should constitute provocation, the court does not consider the susceptibilities of the accused. See Olubu V. The State (1930) 1 NCR 309 at 321. The guiding principles of self-defence, I further repeat, are necessity and proportion. If the accused can show necessity for his conduct on the facts as he reasonably believed them to be a valid defence sufficient, his acquittal can be made. See R. V. Nwibo (1950) 19 NLR 124. If however the threat offered is disproportionate with the force used in repelling it, then the defence cannot avail the accused. See also the case of R. V. Onyeamaizu (1958) N.R.N.L.R 93. The defence is weakest where the position of the victim, as in this case, is weaker than that of the accused. In such a situation the issue of self-defence does not arise and the defence is not available as rightly held by the lower court in affirming the judgment of the trial court.

 In this appeal, the evidence accepted by the learned trial judge excluded any question of self defence on the part of the appellant. The Court of Appeal agreed with the trial court's rejection of the defence. I also agree entirely with these concurrent findings of fact of the two lower courts. See the case of Elowa Enang & Ors. V. Fidelis Ikor Adu & Ors. (1981) 11-12 SC. 25. In otherwords, the defence of self-defence was right rejected by the learned trial judge and also affirmed by the lower court. There could have been no other alternative verdict better than the one put in place.

 The defence of self defence put up by the appellant has been disproved by the prosecution who had successfully proved the appellant guilty as charged. The issue is therefore resolved against the appellant. The appeal is hereby dismissed as lacking in merit.

 The conviction and sentence of death passed on the appellant by the trial High Court Osun State on the 26th July, 2001 and which was on the 25th March, 2010, affirmed by the Court of Appeal Ibadan Division is hereby also endorsed by this court. The sentence of death by hanging passed on the appellant is also affirmed.