"Let us now consider the defence of self defence which as I said is an absolute defence to the charge of murder. For self defence to avail the appellant, the facts on record must show the following which the prosecution has not been able to disprove: a) he was assaulted by another, b) he has not provoked the person assaulting him c) the nature of the assault may be one that causes reasonable apprehension of death or grievous harm. d) he used reasonable force to defend himself. e) he never intended to kill that person or inflict grievous bodily harm. The Supreme Court settled the issue of self defence by stating that the defence of self defence by nature is determined essentially on facts and circumstances of each case. Obaseki JSC in Ajunwa v The State (Supra) approving and following Laoye v The State (1985) 2 NWLR Pt.10. Pg 832 held that: "Under our legal system, if a man is attacked in circumstances where he seriously believes his life was in danger of serious bodily harm, he may use such force as he believes is necessary to prevent and resist the attack. And if in using such force he kills his assailant, he is not guilty of any crime even if the killing was intentional. In deciding whether it was reasonably necessary to have used such force as was used regard must be had to all the circumstances of the case including the possibility of retreating without danger or yielding anything that he is entitled to protect." The appellant relied on the same facts to plead provocation and self defence. The person being attacked, in the instant case, the appellant must bear in mind Necessity and Proportion. He must be able to say that he did what he did out of necessity to save his own life and that the force he applied was proportional to that of his attacker. In the instant case, the deceased accosted the appellant and started beating him, from the evidence before the Court, the deceased cut the Appellant on the hand with a knife. It was only natural for the Appellant to struggle to save himself from further harm as that is how a reasonable man would feel and act. The question remains, if he had not stabbed and killed the deceased would the deceased have stabbed and killed him instead? The answer is in the affirmative. I am therefore convinced based on the evidence before us that the appellant can say that his act of stabbing and killing the deceased was borne out of necessity and that he reacted proportionately. See: Adeyeye v The State (2013) 11 NWLR Pt.1364 Pg.47. It is of no moment that the Appellant had stabbed the deceased after he collected the knife, as the struggle and fight was continuous; temporarily getting a hold of a part of the knife is not coterminous with overpowering the deceased. In order to rely on the defence of self defence, an accused has to show that his life was so much endangered by the act of the deceased that the only means of escape from imminent death was to kill the deceased. The legal right to kill in self defence cannot be made dependent upon the temperament or phlegmatic nature of the appellant. For anyone who claims to have exercised this legal right to kill, the law insists upon one standard. It is the standard of the reasonable man. See Akpan v The State (1994) 9 NWLR Pt. 368 Pg.347,Afosi v State (2013) 13 NWLR Pt.1371 Pg. 329 at 357 - 358. At all material times, the evidence available was that the deceased constituted a threat to the Appellant, from the moment he came into the house the Appellant shared with P.W.5 till the moment he was stabbed, even after the stabbing occurred, the Appellant took to his heels presumably to avoid any more confrontation or harm. Undoubtedly, in a criminal case such as this the onus is on prosecution to establish the guilt of the appellant beyond all reasonable doubt but not beyond any shadow of doubt. For an appellant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the Court. See Friday Aiguoreghian & Anor v State 17 NSCQR 442 at 475. The Appellant in the circumstance took the only option available to him to prevent further harm from being inflicted on himself, in a manner proportionate. I am persuaded from the evidence that the lawful excuse of self-defence is available for the killing of the deceased by the appellant in the circumstances of this case. The Respondent's counsel had argued in the brief that PW.4 and PW.5 stated in their evidence on oath that the Appellant used the kitchen knife in the kitchen of his house to stab the deceased and that he took it along when he left his bedroom to fight with the deceased. It is unfortunate that these arguments are based on outright falsehood. Because of the fact that such an important fact would prove premeditation on the part of the Appellant, I took the pains to read the evidence of PW.4 and PW.5 several times over. I found no such evidence from either witness on oath. It is unfortunate that the prosecution developed an overactive imagination of the facts of this case to turn the evidence of the Appellant that there was a kitchen near the stairs to the fact that the Appellant took a knife from the kitchen. Respondent's Counsel also stated that the Appellant stabbed the deceased in the heart which is patently untrue and even contrary to the evidence tendered by the prosecution. Where one is charged with murder, the aim of the state cannot be to secure another death even in the absence of cogent and verifiable evidence. Surely, the Respondent Cannot be suggesting that it is okay to order the death of the accused based on Ifs, WOULD HAVEs and MAYBEs. One cannot afford to gamble with life; there must be absolute certainty of culpability before life should be taken under any circumstance, this is because of the sacred nature of life which is God given. See: Ononuju v. State (2015) All FWLR Pt.810 1198 at 1232. Defence and prosecution counsel should never allow the competitive spirit to win make them forget that they are officers in the temple of justice and that human lives are at stake in criminal trials. Both the Appellant and PW.5 who knew the deceased gave evidence that the deceased was bigger in size and older then the Appellant. I believe the evidence of the Appellant that he was provoked into a fight by the deceased who drew a lethal weapon first. I believe that he was in danger for his life and because of the size of the deceased had no opportunity to withdraw from the fight. I believe he inadvertently stabbed the deceased with part of the broken knife when he was trying to escape from the deceased. The I.P.O. confirmed that the Appellant had injuries on his hands from the wounds inflicted by the deceased. The injury marks on the hands of the Appellants shows that the attack by the deceased was not merely an "anticipated attack" and that there was indeed an "actual attack". The natural reaction in the said situation is that of self preservation. Self-preservation in law translates to selfdefence in these circumstances. The Appellant believed that the deceased was going to cause him grievous bodily harm or death, and as such the plea of self-defence should afford the Appellant. See: Apugo v. State (2006) All FWLR Pt. 341 Pg. 1253, (2006) 12 SCM Pt.1 Pg.168; Kwaghshir & Anor v. State (1998) 1 ACLR 548 SC Pgs. 560-561. The Law is well settled that an accused is presumed innocent until proven guilty, and it is not the duty of the accused to prove his innocence, rather the duty lies with the prosecution to establish the guilt of the accused beyond reasonable doubt. See: Alatise v. State (2013) All FWLR Pt.686 552 CA at 566; Bello v. State (Supra); lgabele v. State (2006) All FWLR Pt. 311 1797; Ani v. State (2003) 11 NWLR Pt. 830 142; Ifejirika v State (1999) 3 NWLR (593) 59 I am of the humble view that the onus of proof that the Appellant premeditated the murder or willfully without any excuse inflicted grievous bodily harm on the deceased has not been discharged by the prosecution in the circumstances of this case and that the Appellant Is entitled to the defence of self-defence."

Per OGUNWUMIJU, J.C.A IN OCHI v. STATE CITATION: (2018) LPELR-45064(CA)