SANI v. THE STATE (2017)

In The Supreme Court of Nigeria

On Friday, the 15th day of December, 2017

SC.293/2013

Before Their Lordships

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria


Between

UMARU SANI – Appellant

AND

THE STATE – Respondent

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AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Appellant was tried, convicted and sentenced to death by the High Court of Kaduna State for the offence of culpable homicide punishable with death. He allegedly forced his way into his former wife’s room at midnight of 12/81/2002, where he met her with one Ibrahim Yusuf and in a fit of rage, Appellant stabbed ” Ibrahim Yusuf, (deceased) “with a sharp knife on his neck causing his instant death”.The Prosecution called four witnesses, including the Appellant’s former wife, Amina Shuaibu, as PW4, and it tendered four Exhibits, including two confessional statements he had made to the police.
At the close of the Prosecution’s case, the defence counsel made a no-case submission that was overruled by the trial Court on 7/12/2007, and the Appellant was “called upon to enter his defence”.

On that same 7/12/2007, the trial Court granted the defence counsel’s application to recall PW2, Cpl. Joseph Abu, and PW3, Idris Shuaibu, who is the PW4’s brother, for “further cross-examination”. The matter was adjourned three times because the witnesses were not in court when they turned up, defence counsel was not in Court, and the learned trial Judge, Kurada, J., ordered as follows-
Defence counsel applied to recall the PW2 and PW3, for further cross-examination and this Application was granted on 7/12/07. However, since then, the two witnesses have not been further cross-examined because the Prosecution had been unable to trace them. Today, the witnesses are in Court but for no reason, the defence counsel is not in Court, I take it, therefore, that he no longer intends to ask further questions. The witnesses are accordingly discharged. The case is adjourned to 3/11/08 for defence. The defence counsel shall be served. 
On 3/11/08, the Appellant testified as the DW1, and closed his case, and Kurada, J., in his Judgment delivered on 24/2/2009, held that the Prosecution proved its case beyond reasonable doubt. He found the Appellant guilty and convicted and then sentenced him to death.
The Appellant appealed to the Court of Appeal and one of his complaints was that he was not accorded a fair trial at the trial Court in that when his counsel “was absent without excuse” the trial Court “did not ask [him] either to employ another counsel or to personally cross-examine PW1 and PW2 before [it] discharged the witnesses”; and he was not given opportunity to present his case through them.
In its Judgment delivered on 19/2/2013, the Court of Appeal set out the different adjournments at the trial Court, and stated as follows-
When the case ultimately came up on 3/10/2008, learned counsel to the Appellant was not in Court and the Court adjourned the case to 3/11/2008. On the said 3/11/2008 when the case come up, learned counsel to the Appellant opened his defence. What the learned counsel – – ought to have done if he was still desirous of further cross-examining PW2 and PW3 was to tender his apology and reasons as to why he was absent at the last adjourned (sic) and then – – apply to the lower Court to recall PW2 and PW3 for the purpose of further cross-examining them. Surprisingly, on 3/11/2008, the then learned counsel to the Appellant failed to take the appropriate step but rather proceeded to open Appellant’s defence. Being the architect of his own misfortune, Appellant cannot now bamboozle this Court with his untenable contention that his Fundamental Right had been infringed upon. The Lower Court having provided both parties with the opportunity to present their case before it but which the learned counsel to the Appellant failed to utilize, the Appellant cannot now contend before the Court that his Fundamental Right had been infringed upon.

The Court of Appeal concluded that the trial Court “was not in error when it convicted the Appellant”, and found no merit in the Appeal. It therefore dismissed the Appeal and affirmed the conviction and sentence imposed by the trial Court in its Judgment of 24/2/2009.
Further aggrieved, the Appellant has appealed to this Court with a Notice of Appeal containing three Grounds of Appeal. He formulated two Issues for Determination in his Brief of Argument, as follows
1. Whether the learned justices of the Court of Appeal were right when they held that on the state of the evidence adduced, the trial Court was not in error when it convicted the Appellant for the offence charged.
2. Whether the learned Justices of the Court of Appeal were right when they held that the Fundamental Right of the Appellant was not infringed by the trial Court.

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But the Respondent submitted in its brief of argument that the only issue that calls for Determination in this Appeal is: whether the Court below was right to have affirmed the Judgment of the trial Court.
The Respondent did not mention or formulate any Issue from Grounds 1 & 2 of the Grounds of Appeal touching on the complaint that the Court below erred in holding that Appellant’s grouse about infringement of his fundamental right by the trial Court is untenable. Thus, I will adopt the Appellant’s Issues in dealing with this Appeal.
Issue 1 is inextricably tied to the appraisal of the facts vis-a-vis the ingredients of the offence of culpable homicide, which are that:
i. The deceased died;
ii. The death of the deceased resulted from the act of the Accused; and
iii. The Accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. 

See Section 221 of the Penal Code, Sule Ahmed (Alias Eza) V. State (2001) 18 NWLR (Pt. 746) 622 SC, relied upon by the trial Court and Akpa V. The State (2007) 2 NWLR (pt. 1019) 509 relied upon by the Court of Appeal. The Appellant cited the following on this point
– State V. Danjuma (1997)5 NWLR (Pt. 505) 512,
– Sule v. State (2009)19 NWLR (pt. 1169) 33,
– Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471,
– Mbang V. State (2010) 7 NWLR (Pt.1194) 431,
– Usman V. State (2011) 3 NWLR (PT. 1233) 1,
– Uluebeka V. State (2011) 4 NWLR (pt. 1237) 358,
– Ogba V. State (1992) 2 NWLR (Pt. 222) 164,
– Nwaeze V. State (1996) 4 NWLR (Pt. 143) 175 and
– Gira v. State (1996) 4 NWLR (pt.443) 375 
The Respondent cited Kaza V. State (2008) 32 WRN PG 46 81 (sic).
That said; the Appellant is not disputing the first ingredient that “the deceased died”. It is his contention, however, that “while the Prosecution succeeded only in proving the death of a human being, it failed to proof (sic) the other ingredients of the offence as charged.”
He cited the following cases on burden of proof and discharge of same by the Prosecution – Uzoka V. FRN (2010) 2 NWLR (Pt. 1177) 118, Jua V. State (2010) 4 NWLR (Pt.1184) 217, Ike V. State (2010) NWLR (Pt. 1186) 41, Gabriel V. State (2010) 6 NWLR (pt. 1190) 280, Garba v. State (2010) 14 NWLR (pt. 1266) (sic), Sabi V. State (2011) 14 NWLR (Pt. 1286) 421, Bakare V. The State (1987)1 NWLR (Pt. 52) 579, Mangai V. The State (1993) 3 NWLR (Pt. 2791) 108, Woolmington V. D.P.P. [1935] A.C.462, and Okagbue V. C.O.P [1965] NML 232.

He also argued that the ingredients of the offence must co-exist and where one of them is either absent or tainted with some doubt, the charge has not been proved – Obudu V. State (1999) 6 NWLR (Pt. 198) 433, Ogba V. State (supra), Sabi V. State (supra), Adara V. State (2006) All FWLR 177, 1785; that if the Prosecution only succeeds in proving that his act could have caused the death of the deceased, that standard of proof has not been attained – Onyennankeye V. State [1941] All NLR 151, Akinfe V. State [1988] 3 NWLR [Pt. 85] 729; that to determine whether the ingredients were proved against him, testimonies of PW1, PW2 and PW3 are germane; that there is no evidence to prove that he intended to kill the deceased; thus, the requisite standard of proof was not attained to justify his conviction.
The Respondent conceded that the burden of proof lies with the Prosecution, but argued that this is not proof beyond all shadow of doubt but beyond reasonable doubt, citing Agbo V. State (2006) 6 QCCR 48, Emoga V. State (1997) 1, NWLR (pt. 483) 615, and State V. Danjuma (supra), Miller v Minister of Pension (1994) 2 All ELR 372.

It also submitted that the evidence adduced by the prosecution witnesses, which it set out, proved or established all the ingredients of the said offence of culpable homicide punishable with death.
As the Appellant rightly submitted, all three ingredients of the offence of culpable homicide must co-exist to secure

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any conviction – Ubani V. State (2003) 18 NWLR (pt. 851) 24, Adara v. State (supra). In this case, the Prosecution had to also prove that the death of the deceased was caused by the Appellant; and that the Appellant’s act that caused the death was done with the intention of causing death or he knew that death would the probable consequence of his act.
The trial Court posed the question – “what caused the death of Ibrahim Yusuf?” and in answering the question, it held as follows-
The evidence of PW3 Idris Shuaibu, who is the senior brother of PW1 is that he was sleeping in his room ground 12.00 midnight of the day of the incident, when he heard noise coming from his sister’s room. He woke up and went to the room, on getting into the room, he saw the deceased, Ibrahim Yusuf, lying down already dead. He saw blood from the deceased’s body and the Accused was standing in the room, holding a knife. He did not witness what happened, so he asked the Accused what had happened. The Accused did not answer him but ran away instead. – – – PW4, Amina Shuaibu, gave evidence that the deceased – – went to her room to inquire whether her “Iddah” period had expired. While she was telling the deceased that it had not expired and that he should go, the Accused, who is her former husband, suddenly appeared. He held her by her hand, pulled her out of the room and then entered the room. She went to call people, her senior brother, Idris Shuaibu (PW1) heard noise coming from her room and went there, the senior bother entered her room and saw the Accused and Ibrahim (deceased) in the room but Ibrahim was already dead. She heard the deceased say, “are you going to kill me”, after the Accused pulled her out of the room, she said that she saw the Accused with a knife. It is clear from evidence of PW3 and PW4 that they did not see the Accused stab the deceased. It is however also clear that the deceased was alive and healthy, talking to PW4 until the Accused suddenly appeared, pulling PW4 out of the room and entered while holding a knife, and before PW3 could get to his sister’s room (PW1’s room) from his own room, which was next to his sister’s room, after hearing noise from his sister’s room, he found the Ibrahim (deceased) lying down dead in his own blood and the Accused was standing by in the room with a knife. When PW3 asked the Accused what happened, the Accused ran away. It is also very clear that after the Accused pulled PW4 out her room and then entered the room with a knife, PW4 went out to call people and left the Accused and the deceased in the room. The deceased died shortly after the Accused entered PW4’s room with a knife and met the deceased in the room. PW2 Cpl. Joseph Abu, conveyed the corpse to the General Hospital, Birnin Gwari, where post Mortem Examination was conducted on the corpse and a medical report was issued to PW2 – – i.e, Exhibit 4. The Exhibit shows that the corpse of Ibrahim Yusuf was taken to the General Hospital by PW2 on 13/8/2002, the next day after the death has occurred. The report also shows that there were – “2 deep stab wounds around the jugular of the neck”. The report further states that the cause of death is- “irreversible hypovolalmie shock due to massive hemorrhage as a result of damage to jugular vein”. The evidence of PW2 has not been discredited and Exhibit 4 has also not been discredited or controverted. I have no contrary evidence as to the cause of death of Ibrahim Yusuf, I accept and believe the evidence of PW2 and Exhibit 4. I find as a fact that the cause of the death of Ibrahim Yusuf is as stated in Exhibit 4, that is to say, “irreversible hypovolalmie shock due to massive hemorrhage as a result of damage to jugular vein”. The two “deep stab wounds around the jugular of the neck, caused the damage to the jugular vein which led to massive hemorrhage that brought about the “irreversible hypovolalmie shock.”
The trial Court also considered Appellant’s Statements to the Police [Exhibits 2 & 3], wherein he admitted that he stabbed the deceased, vis-a-vis other pieces of evidence before the Court, and concluded-
There is evidence outside the confessions corroborating the confessions in Exhibits 2 and 3. I have no doubt in my mind that the act of the Accused – – caused the death of Ibrahim Yusuf. I disbelieve the evidence of the Accused that the deceased fell on pieces of broken mirror. I also disbelieve his evidence that he was beaten and forced to admit that Exhibit 7 is his knife and that the Police pointed a gun at him in order to force him to admit that it was his knife and that he was induced to admit Statements shown to him and that he thumb printed the statements as a result of the inducements. Contrary to his claim that he thumb printed the statement, Exhibit 2 and 3 are signed; secondly, when the Statement and the knife were tendered in evidence, the Accused never made these allegations at all, he simply denied having made the statement and ownership of the knife. What he said in his oral evidence in his own defence, is therefore an afterthought and I reject it. I hold that the Accused made Exhibits 2 and 3 voluntarily and the Exhibits are free voluntarily, direct, positive and properly proved and I am satisfied of their truth. I hold that Prosecution has proved the second ingredient beyond reasonable doubt. 
In affirming the trial Court’s finding, the Court of Appeal reproduced what PW4 (his former wife) said under cross-

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examination, which is-
I have forgotten the date of the incident. I did not welcome deceased when he came. The Accused pushed me out of the room when he entered my room and saw me with the deceased. From that point I went to seek for help I did not see what happened but it was my brother Idris that told me what happened. It did not take me time to return to the scene when I went to seek for help. I cannot estimate the time. I do not know the time when my brother Idris entered my room and met the Accused and the deceased. I personally heard the deceased ask “are you going to kill me?” I was by the door steps of the room when I heard the deceased say so. My senior brother Idris was then holding the Accused when the deceased was asking the question. I did not see the Accused stab the deceased I only saw him with a knife.

Thereafter, the Court of Appeal observed as follows-
The only incrimination (sic) evidence, which PW4 gave against the Appellant vis-a-vis the cause of death of the victim was that she heard the victim uttering the word– “are you going to kill me” and that she saw the Appellant holding a knife. PW3 also claimed to have seen the Appellant holding a knife. The question that must be asked at this juncture is whether there are circumstantial evidence pointing to the fact that the Appellant committed the offence upon which he was convicted and sentenced to death — It is also pertinent to emphasize that the Appellant had in the course of his examination admitted that he was at the scene of the crime i.e. the room where the deceased’s body was found, and that during a scuffle that ensued between him and the deceased, the deceased fell on a broken mirror. In Exhibits 2 and 3, the Appellant clearly stated that he stabbed the deceased on his neck with a knife. Learned counsel to the Appellant raised objection against admitting the said Exhibits 2 and 3 in evidence based upon the premise that the said Exhibits were not authored or signed by the Appellant, but overruled by the lower Court. The objects (sic) had relegated the said Exhibits into a “retracted confession statement” But notwithstanding the relegation of the said Exhibits, a Court of law can still rely on them to convict an accused Person – – In [this] appeal, there are snippets of circumstantial evidence which tend to corroborate and strengthen the content of Exhibits 2 & 3 that it was the Appellant that stabbed the deceased on the neck. For instance, the Appellant admitted that he fought with the deceased at the scene where the victim’s body was found, PW4 stated that she saw the Appellant with a knife and she also heard the deceased pronouncing the words “are you going to kill me” and Exhibit 4 clearly showed that the corpse of the deceased had 2 deep stab wounds around the jugular of the neck.

Apart from general arguments touching on all the three ingredients, the Appellant did not have much to say about the second ingredient. However, the Respondent argued that the confessional statements made by the Appellant in Exhibits 2 & 3, clearly established that the death of the deceased was as a result of the act of the Appellant.
It submitted that the evidence of prosecution witnesses was credible, reliable and were not impeached under cross-examination that there is overwhelming and compelling circumstantial evidence in this case that points to only one irresistible conclusion: that the Appellant stabbed the deceased to death and furthermore that-
By virtue of Section 149 of the Evidence Act, the trial Court rightly drew inference from relevant established facts (circumstance), which by undesigned coincidence conclusively and indisputably points in the direction of the guilt of the Appellant. Even in the absence of direct eyewitness account or testimony on how the appellant stabbed the deceased to death, there exist from the totality of the evidence positive, compelling and irresistible circumstantial evidence leading to the conclusion that Appellant is guilty – Akpan v. State (2001) 7 SCJN 567; The State V. Ogunbunjo (2001) 1 SCJN 86; Akinmoju V. The State (2000) 4 SCJN 179; Sule Ahmed (aka Eze) V. State (supra).
The two lower Courts acknowledged that there is no direct evidence that it was the Appellant, who inflicted the two deep stab wounds on the neck of the deceased, which caused the death of the deceased, and the law does not say that there must be eye-witness testimony or direct evidence to ground a conviction for the offence. The Law accords circumstantial evidence the same respect as direct evidence.
Direct evidence establishes a fact without making any inference to connect the evidence to the fact. Thus, direct evidence proves or disproves a fact directly. Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is “a conclusion reached by considering other facts and deducing a logical consequence from them.” See Black’s Law Dictionary, 9th Ed.
Hence, circumstantial evidence does not point directly to a fact. An inference must be made that links the circumstantial evidence to the fact that the party using it, is trying to prove, which can make it a lot more powerful than direct

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evidence – see Lori & Anor V. State (1980) NSCC (Vol. 12) 269, where Nnamani, JSC, observed as follows-
It is conceded that circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, must be cogent, complete and unequivocal. it must be compelling and must lead to the irresistible conclusion that the Prisoner, and no one else, is the murderer. The facts must be incompatible with innocence of the Accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. 
See also Ukorah V. State (1977) NSCC (Vol. 17) 218. where this Court per Idigbe, JSC, pointed out the “direction” the Court must follow-
The learned author of Wills on Circumstantial Evidence– makes reference to a direction of the Court (and to which, we think, we should draw attention, with approval) in the case of Emperor vs. Browning 39 I.C. 322, where it was stated.
“In a case in which there is no direct evidence against the Prisoner but only the kind of evidence that is called circumstantial, you have a two-fold task, you must first make up your minds as to what portions of the circumstantial evidence have been established, and then when you have got that quite clear, you must ask yourselves, is this sufficient proof? It is not sufficient to say, “If the accused is not the murderer, I know of no one else who is.” There is some 
evidence against him, “and none against anyone else”. Therefore, I will find him guilty.” Such a line of reasoning as this is unsound, for experience shows that crimes are often committed by persons unknown, who have succeeded in wholly covering their track —

In this case, what were the surrounding circumstances from which the trial Court and the Court of Appeal came to their conclusion that the only inference capable of being drawn was the Appellant’s guilt? The trial Court reasoned and concluded as follows on this element-
There is no direct evidence as to what or who caused or inflicted the two deep stab wounds — PW4 and PW3 did not see the Accused stab the deceased. They did not give evidence that the Accused stabbed the deceased. However — after the Accused suddenly appeared, pulled his former wife (PW4) out of the room and forcefully entered the room, he met only the deceased in the room. PW3 and PW4 saw the Accused holding a knife while in the room. PW4 heard the deceased say “are you going to kill me” and shortly afterwards, she found the deceased died (sic) in her room, and the Accused standing by holding the knife. PW3 – – – went to PW4’s room and when he entered, he saw the deceased lying down with blood from his body and he was already dead. He met the Accused standing in the room, holding a knife. When he asked the Accused what happened, the Accused ran away. — This is circumstantial evidence showing that it was the Accused that inflicted the injury that caused the bleeding PW3 and PW4 saw. The facts are incompatible with the innocence of the Accused and incapable of any other reasonable hypothesis than that it was the Accused that inflicted the two deep stab wounds on the jugular of the neck of the deceased. The circumstance (sic) evidence leads to this irresistible conclusion – – I rejected the claim of the Accused — that as the deceased and himself were struggling in PW4’s room, they fell on pieces of broken mirror and that people went and separated them and sent him out. This evidence tries to show that the wounds on the deceased were not inflicted by the Accused and that the deceased did not die instantly. I reject the evidence because when PW3 and PW4 testified, the defence did not put these facts to them or any to admit or deny that there were pieces of broken mirror in PW4’s room. Secondly, the Accused could not even name, let alone call any of the people that he claims separated them. Thirdly, the wounds on the deceased – – are not consistent with wounds from pieces of a broken mirror. They are – – consistent with what Accused said in Exhibit 2 and 3 – – I disbelieve [his] evidence and I hold that it is an afterthought. I accept evidence of PW3 and PW4 that the deceased died not long after [he] entered PW4’s room and met him.

The Court of Appeal, on its part, observed as follows on this issue-
There are snippets of circumstantial evidence, which tend to corroborate and strengthen the content of Exhibits 2 & 3 that it was the Appellant that stabbed the deceased on the neck. For instance, the Appellant admitted that he fought with the deceased at the scene where the victim’s body was found.

I agree completely in addition to the confessions in Exhibits 2 & 3, the Appellant, as DW1, testified that when he pushed the door into PW4’s room that night and entered the room, the deceased held him by his collar and PW4 started to

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shout and that he and the deceased “started to struggle” and they fell down on pieces of broken mirror.
Under cross-examination, the Appellant said it was true that he “used force to enter the room“. He also stated that he met only PW4 and the deceased inside the room but he cannot say if the deceased “was injured after he fell on the mirror”. There is no doubt as to the fact that the body of the deceased was recovered from PW4’s room, after the Appellant’s “struggle” with the deceased in the said room.
PW2 Cpl. Joseph Abu, conveyed the body of the deceased to the General Hospital where a post mortem examination was done. The Medical Report – Exhibit 4, shows that the body was taken there by PW2 on 13/8/2002, the day after the struggle with the deceased. Exhibit 4 also reports that there were “2 deep stab wounds around the jugular of the neck, of the deceased and that cause of death is “irreversible hypovolalmie shock due to massive hemorrhage as a result of damage to jugular vein”; jugular vein on deceased’s neck.
The nitty-gritty of the evidence before the Court, including the Appellant’s confession and testimony as DW1, is that the Appellant forcibly entered PW4’s room around midnight of the day in question. He accosted the deceased, who was in the room with her, and in the scuffle that ensued, the deceased got stabbed twice on the neck.
The Appellant alluded to the fact that the stab wounds on the neck of the deceased were incurred from pieces of broken mirror, while the evidence adduced by the Prosecution, and accepted by the lower Courts, is that Appellant stabbed the deceased with a knife. The question is whether the Prosecution proved beyond reasonable doubt that the Appellant stabbed the deceased with the said knife?
In Exhibit 2 [i.e. his first confessional Statement to the police], Appellant admitted that he went to PW4’s room with a knife thus-
I was about opening the door when somebody bounce back the door to me but I forced myself to enter and when I got inside I saw one man called Ibrahim Yusuf that he was the one that bounce back the door back to me and immediately I entered, the said Yusuf Ibrahim started fighting me and together with my former wife, Amina. When the beating become too much, I brought out my knife from my waste (sic), which I always go out with to defend myself in case of any eventuality so when I brought the knife, I used it to stabbed (sic) the said Ibrahim Yusuf on his neck and he fell down.

In Exhibit 3 [i.e. his second confessional Statement to the Police], Appellant stated that he forced his way into PW4’s room and that-
From there, Ibrahim started fighting me and during that time, I was having a knife in my position (sic), I remove the knife and chuck (sic) him in his neck, but I cannot remember how many times I chuck (sic) him with the knife – –

However, in his testimony as DW1, the Appellant denied that he had a knife with him when he broke into PW4’s room. He testified that-
The Police – – showed me a knife and said it was the knife I used in fighting Ibrahim. I told them that I did not have a knife. They told me to accept it was my knife or they would deal with me. They started to beat me and putting tear gas in my eyes. They pointed a gun at me and said if I did not confess they would kill me but if I said it was mine, they would leave. When I felt that they could kill me, I confessed that it was mine.

The trial Court disbelieved the Appellant and rejected his testimony as an “afterthought”, and the Court of Appeal affirmed its decision.
The Appellant however submitted that since the evidence did not show that he was expected to meet another man in his wife’s room that night, it cannot be said that he knew that the deceased would be in the room let alone carrying a knife to kill the deceased.
As to the knife used to commit the crime, he submitted that it was not recovered from him, and so, the knife tendered as Exhibit 1 could not have been the knife he used, that on this point, PW2 said-
I investigated the cause of death of the deceased, I recovered the knife from Idris Shehu, the complainant (PW3), and not from the Accused.

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He also argued that notwithstanding the fact that he admitted in his statement to the Police that he held a knife, there was no weapon on him when he was arrested, thus, a proper investigation ought to have been conducted by subjecting the said Exhibit 1 to laboratory tests to determine the purpose for which it was used, that the source of the blood stains allegedly found on Exhibit 1 was not determined, neither was his fingerprint determined to be on Exhibit 1, therefore, there is a serious doubt linking him with the said knife – Exhibit 1.
Obviously, the Appellant’s argument lacks merit. He confessed in Exhibits 2 & 3 that he forced his way into PW4’s room with a knife, and it is settled that once a confessional statement is admitted in evidence, it becomes part of the prosecution’s case, which the Judge is bound to consider for its probative value – Akpan v. State (supra).
It is also trite that findings on primary facts are matters within the province of a trial Court, and there is a rebuttable presumption that its findings and conclusions are correct. This is so because there is not much an appellate Court can do when an Appeal turns on the issue of credibility. lt is the trial Court that saw the witnesses, heard them and watched their demeanour in Court that is in the vantage position to believe or disbelieve them, that advantage can never be recaptured by an appellate Court- see Sugh V. State (1988) 1 NWLR (Pt. 77) 475 and Adelumola v. The State (1988) 1 NWLR (pt. 73) 683. 
What is more, where there is sufficient evidence to support concurrent findings of fact by two lower Courts, such findings will not be disturbed unless there is significant error apparent on the Record that is, the findings are shown to be perverse, or some miscarriage of justice or some violation of principles of law or procedure is shown – Ogoala V. State (1991) 2 NWLR (pt. 175) 506.
It is also settled that where a man is attacked with a lethal weapon and died on the spot, it can be inferred that the wound inflicted caused the death. Thus, where cause of death is obvious, medical evidence is not necessary in homicide cases – Ben V. State (2006) 76 NWLR (pt. 1006) 582 SC.

In this case, the Appellant confessed that he had gone to PW4’s room with a knife, which he used to stab the deceased on the neck. He changed his story in Court but the trial Court did not believe him, which is its prerogative, because the assessment of the credibility of the witnesses is a matter within its province – Sugh V. State (supra).

The body of the deceased was found right there in PW4’s room, after the Appellant’s “struggle’, with the deceased in the said room. The Appellant noted that PW1 stated under cross-examination that-
There were dried blood stains on the knife, I did not confirm from any laboratory what blood stains were on the knife because the Accused confirmed it.

The Appellant viewed this statement of PW1 negatively but the fact remains that he admitted that he used the knife to stab the deceased on the neck and the deceased fell down. By the time PW3 rushed to the room, he found the deceased lying down dead in his own blood. In such circumstances, taking the knife to the laboratory definitely ceased to be of any practical or legal necessity – Ben v. State (supra).

The bottom line is that the Appellant had used a lethal weapon to stab the deceased twice on the neck, and the deceased died there and then in PW4’s room. The deceased was never seen alive again after the Appellant forced his way into PW4’s room, and inflicted the “two deep stab wounds”, on the neck of the deceased. Obviously, the conclusion of the lower Courts that it is only the Appellant that could have stabbed the deceased in that room is the only inference that can be drawn from the surrounding circumstances of this case.
Nonetheless, the Appellant insists that the prosecution did not prove the third ingredient that he caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was a probable consequence. He argued that there was no evidence to prove that he intended to kill the deceased and that “this much was alluded to by the learned trial Judge, who rightly held thus”-
As for the third ingredient, I can say straight away that none of the Prosecution witnesses gave evidence of any intention by the Accused to kill the deceased. There is no evidence that Accused declared any such intention. He also

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did not say so in either Exhibit 2 or Exhibit 3.
But that is not all that the learned trial Judge said; he went on to say-
However, it is the law that intent can be inferred from the acts of the Accused and the rule is that a man is taken to intend the natural and probable consequence of his own act … Intention to kill can also be properly inferred from the nature of the weapon used and the part of the body attacked – – From Exhibits 2 and 3, the Accused intentionally brought out a knife and stabbed the deceased with it on the neck. The part of the body attacked and the weapon used (a lethal weapon) show that the Accused had intention to kill the deceased. The intent can be inferred from the weapon used and the part of the body attacked, and I so infer.

The learned trial Judge also considered his story in Exhibit 2 that he used the knife as a defence when he was beaten up, and concluded-
In law, the defence of self-defence is not available to an Accused when the Accused used a knife and stabs another person to death in the course of a hand to hand fight, as in this case — To have attacked an unarmed person with a knife, the Accused surely exceeded his right of private defence he tries to raise in Exhibits 2 and 3. And for deciding to force himself into the room and refusing to walk out if he was beaten with bare hands, by the deceased, an opportunity he amply had, the Accused lost any right of private defence. For alt that I have said I hold that the only inference that can be made in this case is that the Accused intended to kill the deceased. I hold that the prosecution had proved the third ingredient beyond reasonable doubt.

In affirming the trial Court’s finding, the Court of Appeal observed
In Audu v. The State (2003) 7 NWLR (Pt. 820) 576 the Court held that:
“A man is presumed to intend the natural consequence of his act.
Accordingly, 
whereby an unlawful act, he causes another person grievous bodily harm leading to the death of that person and he would be guilty of murder irrespective of his intention.”
In the instant appeal, the Respondent before the lower Court had adduced evidence, which clearly showed that the Appellant stabbed the deceased with a knife on his neck. Specially, Exhibit 4 stated that the cause of the death of the deceased was a result of-
“Irreversible hypovolalomie shock due to massive hemorrhage as a result of damage to jugular vein.”
Thus, by stabbing the deceased with a knife on a very sensitive and delicate part of the body like the neck, leaves no one in doubt that the Appellant either intended causing the death of the deceased or that the Appellant wanted to inflict a grievous bodily injury on the deceased that would ultimately lead to his death. 

The Appellant also argued that by the evidence adduced at the trial, the Respondent did not prove that he knew that his act would likely result in the deceased’s death, and that to prove this third element, there must be proof that there was intent to kill or cause grievous bodily harm to the deceased, though the Prosecution may rely on a presumption that a man intends the natural consequence of his case, and he cited in support Bakare V. State (1987) 1 NWLR (pt. 52) 579.

I am surprised that Appellant referred this Court to the case of Bakare V. State (supra) because the decision of this Court therein is certainly not in his favour. In that case, the Appellant had stabbed the deceased on the head with a dagger. He denied that he stabbed the deceased at all rather he claimed that the deceased had fallen to his death by knocking his head against the pedal of his motor cycle. The trial Court believed the evidence of the Prosecution Witnesses.
The trial Court disbelieved his story, which it aptly described as “an afterthought designed to hide the truth.” It did not believe that the type of injury sustained by the deceased and described by the Medical Doctor could be caused by mere fall on a motor cycle pedal. He was convicted. The Court of Appeal affirmed his conviction and dismissed his Appeal. The Appellant further appealed to this Court. In dismissing his Appeal, this Court per Oputa, JSC, observed that-
The learned trial Judge had two conflicting versions of the causes of the death of Rasaki Adedokun- the Prosecution’s case was that Rasaki was stabbed to death by the Appellant while the Defence was that Rasaki fell to his death by knocking his head against the

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pedal of his Motor Cycle. The learned trial judge reviewed the evidence in support of each proposition, believed all the Prosecution Witnesses and disbelieved the story of the Appellant, which he described as “an afterthought designed to hide the truth”. The learned trial Judge went further. He did not believe that the “type of injury sustained by the deceased” and described by the Medical Witness PW6 – – could be caused by a fall on a motor cycle pedal. This point is important as it emphasizes the fact that a finding of the trial Court must be in accord with the probabilities, which on the evidence it is natural to expect. It is quite improbable that a fall on a motor cycle pedal will produce “a cut 3/4 inch deep and 2 inches long”. From what height would someone fall to produce such injury? From a mountain top, perhaps, but definitely not from someone standing, who merely slipped and fell down. I am satisfied that on the facts, the judgment of the learned trial judge cannot be faulted. He carefully considered the evidence on both sides, pointed out the various flaws, contradictions and improbabilities in the evidence of the defence. He then exercised his prerogative as a trial judge to believe the Prosecution witnesses and disbelieve the Appellant. Surely such a carefully written judgment cannot be upset on the facts. The Court of Appeal was right in not disturbing the trial Court’s finding of fact.
Karibi-Whyte, JSC, also had this to say in Bakare V. State (supra)-
The trial judge having disbelieved the evidence of the Appellant that the deceased, whilst struggling to free himself to fight him, slipped, fell and knocked his head on the pedal of his Motor cycle, and thereby sustained the injury resulting in his death, the remote possibility of the deceased coming to his death by means other than through the wrongful act of the Appellant thereby the prosecution not proving its case against the Appellant no longer arose. – – – – The intention to kill or to cause grievous harm, in this case demonstrated by stabbing the deceased on the head with a dagger, which resulted in death 
will be, and in this case was sufficient to establish the offence with which the Appellant was charged. See Gwoji Jire v. The State (1965) NNLR 52. It is clear from the evidence that at the close of the case for the prosecution, the prosecution had discharged the burden that the deceased died from the intention or reckless act or the Appellant. The burden now shifted on to the Appellant to establish on the balance of probabilities, circumstances of exculpation, such as accident, self defence, insanity etc.- Section 137(3), Police v. Anozie (1954) 21 NLR 29. The only evidence adduced by the Appellant having not been believed, the burden of proof on him was not discharged. The onus did not shift again to the Prosecution and the Prosecution will now be taken to have proved its case beyond reasonable doubt. Since the story of the Appellant was not believed, there was no evidence upon which to compare, in the totality of the case, and consider the existence of a reasonable doubt with respect of the guilt of the accused. See R. v. Oshunbiyi (1961) 1 All NLR 453. The Court of Appeal was therefore right in holding that the case was proved beyond reasonable doubt.
See also Owhoruke v. C.O.P (2015) 15 (Pt. 1483) 557 SC, where the Appellant, who was drinking at a bar, heard an altercation outside the bar, and intervened. He came back to resume drinking. The deceased came into the bar, snatched his bottle and broke it.
The deceased threatened the Appellant with a piece of the said broken bottle, and a struggle ensued. The Appellant overpowered the deceased and stabbed him with the broken bottle on his neck, and he died before he could get to the hospital. The Medical Doctor, who performed the post-mortem examination, said that the major blood vessels, carotid arteries and jugular veins, had been cut in two. The Appellant admitted in his confessional Statements to the Police that he stabbed the deceased, and that it had resulted in his death. But he claimed that the death was not intentional. The trial Court rejected all the defences of self-defence, provocation and accident, and found him guilty of murder and then sentenced him to death. The Court of Appeal dismissed his Appeal. He appealed to this Court. In dismissing his Appeal, this Court per Rhodes-Vivour, JSC, stated-
The threat to Appellant’s life ended when the Appellant overpowered the deceased and took the broken bottle from him. A reasonable man would have given the deceased a couple of slaps and thrown away the broken bottle. – – The stabbing of the deceased was not as a result of temporary loss of control rather the stabbing was for the sole purpose of causing grievous harm- – It is immaterial that the Appellant did not intend to hurt the deceased. The killing was intentional.
Ogunbiyi, JSC, also stated as follows in Owhoruke V. COP (supra)-

The Appellant is deemed to intend the natural consequences of his act. A man who stabs another on the neck region with a bottle is deemed to have intended to kill or cause grievous bodily harm – – The intention to kill or cause grievous harm can be inferred from the nature of the weapon used. – – The learned trial judge was therefore right in holding that the Prosecution proved its case against the Appellant beyond reasonable doubt as the judgment of the learned trial judge is

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supported by the evidence on record.
What can I say or add that would paint a better picture or change the outcome of this Appeal, where the Appellant stabbed the deceased on the neck with a knife, and the trial Court disbelieved his story of what might have occurred in the said room on the night in question.
There is no direct evidence of what actually happened between the Appellant and the deceased in PW4’s room on that fateful night. He pushed PW4 out of the room, so she did not see what happened. PW3 stated under cross-examination that his room and PW4’s room “are linked and close to each other”. All the same, by the time he got to PW4’s room, after she called out, the deceased was already dead.
The Prosecution established beyond reasonable doubt that the Appellant stabbed the deceased on the neck with a knife that night. Obviously, as this Court held in Owhoruke V. C.O.P. (supra), a man, who stabs another on the neck region, is deemed to have intended to kill or cause grievous bodily harm to the person. The intention to kill can be inferred from the nature of the weapon used, and the use of a knife in the sensitive part of the body, like the neck, is telling.
In Bakare V. State (supra), this Court made it very clear that once the Prosecution has discharged the burden of proving that the deceased died from the intentional act of the Appellant, the burden shifts to the Appellant to establish on the balance of probabilities, circumstances of exculpation such as self-defence, accident, insanity. In this case, the trial Court disbelieved the Appellant, and since there was no evidence to compare notes, the Prosecution’s case stands.
Even so, the Appellant also contends under his Issue 2 that the trial Court infringed on his fundamental right as guaranteed under Section 36 (6) of the Constitution. He argued that the predicament he found himself in on 3/10/2008 entitled him to at least be given an adjournment to engage another counsel to conduct the further cross examination of PW2 and PW3, instead of the trial Court to discharge them especially as the Charge against him carried a death penalty.
He further argued that the trial Court ought to have adjourned the case to another date as his counsel had always attended Court that the comment by the Court below that he was the architect of his misfortune was erroneous and that this led to miscarriage of justice Udo v. State (1988) 3 NWLR (Pt.82) 315; that the trial Court ought to have assigned another legal practitioner to represent him as provided for in Section 186 of the Criminal Procedure Code – Ogboh & Anor V. FRN (2002) 4 SCNJ 393, Umaru V. State [2009] 3 SCNJ 33.

Furthermore, that it is a well-established principle that the sins of counsel should not be visited on a litigant but the Court below visited the sin of his counsel on him – Ogundoyin V. Adeyemi (2001) 9 NWLR (Pt. 730) 403, NEPA V. Savage (2001) 9 NWLR (PT. 717) 230, CBN V. Ahmed (2001) 11 NWLR (Pt 724) 369, Okumagba v. Esisi (2005) 4 NWLR (Pt. 916) 501, Ndika v. Chiejina (2003)1 NWLR (Pt. 802) 483, Ahmadu V. Salawu (1974) 9 NSCC 538, Bowaje V. Adediwura (1976) 6 143, Ibodo V. Enarofia (1980) 5-9 SC 42, Cropper v. Smith(1884) 26 CHD 700 and Tildsley v. Harper 1(1978) 7 CHD 403.

Now, a fair trial of a case implies that every reasonable and fair minded observer, who watches the proceedings, should be able to come to the conclusion that the Court has been fair to all parties see Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419, wherein this Court set out certain basic criteria and attributes of fair hearing, as follows-
(i) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision, which may be prejudicial to any party in the case;
(ii) That the Court or Tribunal shall give equal treatment, opportunity, and consideration to all concerned;
(iii) That the proceedings shall be heard in public and all concerned shall have access to and to be informed of such a place of public hearing;
(iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.

In this case, defence counsel applied to the trial Court on 7/12/2007, to recall PW2 and PW3 for further cross-

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examination, it was granted. On 28/1/2008, the Prosecution counsel informed the trial Court that the witnesses were not in Court “and there is no evidence that they have been served”. The trial Court adjourned the case to “22/02/08 for further cross-examination of PW2 and PW3 and for defence.” 
When the case came up on 14/7/2008, PW2 and PW3 were not in Court because the Prosecution was “unable to trace them” and the trial Court adjourned it to “3/10/08 for further cross-examination of PW2 and PW3 and defence”. In all these instances, defence counsel was in Court. However, on 3/10/2008, defence counsel was absent. There was no reason for his absence from Court and the Appellant told the Court that he did not know why his counsel was not in Court.
The trial Court took it that defence counsel – “no longer intends to ask further questions”, and discharged the witnesses accordingly. The trial Court then adjourned the case to “3/11/2008 for defence”, and on that 3/11/2008, the Appellant testified and closed his case.
As the Court of Appeal pointed out, the defence counsel made no reference to her absence from Court on the last adjourned date. He proceeded with the Appellant’s defence as if nothing happened. He made no attempt to explain or apologize for his absence when the Witnesses he asked for, appeared to be further cross-examined, and he was not in Court himself to further cross-examine them.
All the same, I agree with the Appellant that the trial Court ought to have considered the fact that defence counsel had always been in Court on the other dates when the Witnesses did not appear. An adjournment would have sufficed, even if it were till the next day. True enough, an adjournment is not granted as a matter of course but a Court has to strike a medium in determining whether to grant an adjournment or not; taking into account the justice of the matter.
I also think that the Court of Appeal was a bit too harsh on the Appellant when it labeled him “on architect of his own misfortune”, who wanted to “bamboozle [it] with his untenable contention that his fundamental right had been infringed upon”. The Appellant is not a lawyer and could not possibly be aware of what was at stake there. l therefore agree with the Appellant that these comments by the Court of Appeal amounted to visiting the sins of his counsel on him.
However, the law says that it is not every mistake that will lead to the reversal of a Judgment. It is only where the mistake made is substantial and occasioned a miscarriage of justice that it becomes fatal to the Judgment – Solola V. State (2005) 2 NWLR (Pt. 937) 460.

Stripped to the bones, the facts of this case are cut and dried. The Appellant had forced his way into his former’s wife’s room in the middle of the night, and in a jealous rage, he stabbed the deceased who was with her on the neck with a knife, which caused his death. He says he was not given an opportunity to present his case through PW2 and PW3 but I do not see what he could possibly elicit from any further cross-examination of PW2 and PW3 that would have added flesh to the dry bones of his case or provide him with a saving grace.
In my view, the failure to further cross-examine PW2 and PW3 has not occasioned a miscarriage of justice, and this issue lacks merit.
In the final analysis, the Court of Appeal was right to affirm the decision of the trial Court. The Appeal lacks merit and is dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Amina Augie, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I too will dismiss the appeal.
Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I had the advantage of reading in advance the judgment just delivered by my

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learned brother, Amina Adamu Augie, JSC which I agree that this appeal lacks merit and deserves to be dismissed. My Lord has efficiently resolved the two issues submitted for the determination of this appeal. I however wish to make a few comments in support of the judgment.
On the first issue, the appellant complains that there was not enough evidence to convict him of the offence of culpable homicide punishable with death. Both the learned trial judge and the Court below agree that there was abundant evidence which linked the appellant with the killing of the deceased.
In a charge of culpable homicide punishable with death, the prosecution must establish the following ingredients beyond reasonable doubt before an accused can be convicted. That is to say:
1. That the deceased has died.
2. That the death of the deceased resulted from the acts of the accused person and
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence.
The prosecution’s evidence can flow from direct evidence of eye witnesses who actually saw the accused committing the offence or by confessional statement of the accused which has been duly tested, proven and admitted in evidence or by circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused person committed the offence. See Okereke V. The State (2016) LPELR — 40012 (SC), Musa V. The State (2009) 15 NWLR (pt. 1165) 467, Igabele V. The State (2006) 6 NWLR (pt. 975) 100, Alo V. The State (2015) LPELR – 24404 (SC), Idiok V. The State (2008) 13 NWLR (pt 1104) 225 at 237 -238.

Evidence led against the appellant shows that he went to the room of his former wife at midnight of 12th August, 2002 where he met the deceased with her. In reaction, he used a sharp knife and stabbed the deceased on his neck and he died instantly. Evidence came from eye witnesses including PW4, his former wife. I am surprised that the appellant is still pursuing this matter in view of overwhelming evidence against him.
From all I have said above, I agree with the Court below that the prosecution proved the charge against the appellant beyond reasonable doubt. There is nothing a further cross-examination could have done for him in the face of direct and uncontroverted evidence against him. This appeal is devoid of merit and I hereby make an order dismissing same.
APPEAL DISMISSED.
EJEMBI EKO, J.S.C.: On these following unfortunate facts, the Appellant had found himself entangled, prosecuted, convicted and sentenced to death for Culpable homicide punishable under Section 221(b) of the Penal Code Law of Kaduna State. He was previously married to Amina Shuaibu, PW.4. He divorced her formally in Court. The Court ordered the PW.4 to observe the 3 month idda period before re-marrying, which observatory period is to ensure that she did not carry a pregnancy from one marriage to another.
The deceased had shown interest in marrying the PW.4. The latter informed the former to wait until after theidda period had elapsed. On the fateful night, the deceased had come to the PW.4 to enquire if the idda period elapsed. While the PW.4 and the deceased were discussing in the room the Appellant surfaced. He heard the PW.4 and the deceased discussing. He forced himself into the room and threw out the PW.4. In Exhibits 2 and 3, his extra-judicial statements, the Appellant averred that the deceased and the PW.4 were not willing to open the door for him to enter, that they pushed the door against him, that when he forced himself in, the fight started, and that the duo of the deceased and the PW.4 fought him. And further that he consequently pulled a dagger and stabbed the deceased on the neck, and the man died. He had also stated therein that before the incident, he was making moves to reconcile with the PW.4.
I do not think that the facts of the Appellant stabbing the deceased on the neck and the deceased dying instantly as a result are in dispute when the evidence of the PW.3, PW.4 and the Appellant (including Exhibits 2 & 3) are put together. The death of a human being, the deceased, had been established. The cause of death of the deceased has also been established. These are actus reus of the offence he was convicted for.
The trial Court found, as a fact, and the lower Court affirmed the finding, that the Appellant intentionally killed the deceased. The PW.4’s evidence, that upon the Appellant pushing her out of the room, she heard the deceased plead with the Appellant – “Are you going to kill me?, supports the finding of the

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trial Court that the Appellant intentionally killed the deceased. The PW.3 met the Appellant stabbing the deceased. On this posture, I should think, and I so hold, that this finding of the guilty intent of the Appellant, that is the mens rea, supporting his admitted actus reus, that the conviction of the Appellant for intentional culpable homicide is not perverse.
The trial Court had dutifully considered whether the defences of self-defence and provocation, from the available facts, could avail the appellant in anyway, and dismissed them as unavailing. The trial Court and the appellate Court owe the accused person a duty, imposed by the Constitution that enjoins the Court to presume the innocence of the accused person until his guilt is proved beyond reasonable doubt, to consider any defence that may from the evidence avail him notwithstanding whether or not he had specifically raised it. Several decisions of this Court supporting this practice include UDOFIA v. THE STATE (1984) 12 SC 139; GABRIEL v. THE STATE (1989) 5 NWLR (pt. 122) 457 at 464; WILLIAMS v. THE STATE (1992) 8 NWLR (pt. 261) 515; EDIBO v. THE STATE(2007) 5 SC 135. I am also aware of the opinion of Ogbuagu, JSC, in ANNABI v. THE STATE (2008) 4 -5 SC (pt.11) 229; (2009) 13 NWLR (pt. 1103) 179 to the effect that the Court’s duty to consider any defence appearing to avail the accused person is only to the extent of, or as far as the defences or such defences that appear or are contained in the evidence admitted in the proceedings. In other words, his Lordship posited, the duty of the Court is only “to consider all defences raised in evidence in the record of proceedings even if the accused person did not specifically raise them and this is regardless of whether such defence or defences is or are hopeless, weak or stupid”.
I have taken the trouble to consider if either self-defence or provocation avails the Appellant. The Appellant himself was clearly the trespasser or the intruder. He had forced himself to the private home of his divorced wife, the PW.4. He had firstly thrown the PW.4 out of her room, after eaves dropping on her and the deceased. It cannot be said that the PW.4 and deceased were in adulterous relationship or fornication. The PW.4 was no longer his wife, notwithstanding his moves towards reconciliation or rapprochement. On the existing facts, provocation is ruled out as a possible defence available to the Appellant. It does not avail him.
The evidence of the PW.4, appearing that the deceased was pleading as the weaker victim, does not also avail the Appellant to plead self-defence. From the available facts, the Appellant was the intruder and the offerror of the unprovoked assault on both the PW.4 and the deceased. While the PW.4 violently pushed out of the room, was calling on others, including the PW.3, for assistance or intervention, the meek and helpless deceased was pleading or asking the Appellant if he wanted to kill him. The defence of self-defence is open only to the accused person who proves, or can prove, that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm to his person. See UWAGBOE v. THE STATE (2008) 34 NSCQR (pt. 2) 664; (2008) 12 NWLR (pt. 1102) 621 SC. The contrary is, in the instant case, the situation. The Appellant was the trespasser, the late night intruder exhibiting violent aggression. He was the aggressor with the dagger. He had stabbed, with the dagger, a meek and harmless victim, that the deceased was. The interplay of these facts does not warrant any possible resolution in favour of the Appellant that the defence of self-defence avails him.
The Appellant also raised the issue of his being denied fair hearing because the trial Court discharged the PW.2 and PW.3, recalled for further cross-examination, in the absence of his counsel.
At the close of the prosecution’s case, the defence counsel on 7th December, 2007 asked for a date in January, 2008 for defence. He was obliged. The matter was adjourned to 28th January, 2008 for defence and recall of PW.2 and PW.3, for further cross-examination. The defence did not indicate what specifically these witnesses were recalled to be further cross-examined on. The PW.2 and PW.3, already discharged, were not available in Court on 28th January, 2008. (See page 30 of the Record). The matter was further adjourned to 22nd February, 2008 for defence and further cross-examination of the two witnesses. They were similarly unavailable on other dates including 14th July, 2008 and 7th August, 2008.
The prosecuting counsel and defence counsel were both in open Court on 7th August, 2008 when the trial Court adjourned the matter to 3rd October, 2008 for defence and further cross-examination of the PW.2 and PW.3. The defence counsel was however absent in Court on the 3rd October, 2008. There was no correspondence from him to either

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the Court or the prosecuting counsel, and even his client, the Appellant. The conduct was discourteous to the Court and professionally unwarranted and unbecoming of a counsel at the Bar.
The trial Court, on the said 3rd October, 2008, summarily discharged the PW.2 and PW3, without asking the Appellant to cross-examine them, if he could. The Appellant also did not know why his counsel was absent. It is on these facts that the Appellant has raised the issue of his denial of fair hearing.
The decision of the trial Court discharging the PW.2 and PW.3 summarily was an appealable decision within the meaning of Section 318 of the Constitution. The decision was neither timeously appealed nor set aside. The defence seemed to have waived the right to appeal that decision. On 3rd November, 2008, they proceeded to open and close the Appellant’s defence without the PW.2 and PW.3 further evidence. By this waiver, the Appellant is, by conduct, estopped from further raising or reopening this same issue. Estoppel by conduct, under Section 151 of the Evidence Act, 2004 (now Section 169 of the Evidence Act, 2010) is all about this type of waiver of a right. It precludes the Appellant from re-opening a decision he had led the Respondent to believing that he would not appeal, or that he had accepted or is deemed to have accepted.
I have given Issue 2 a close perusal. The Issue 2, purportedly raised from grounds 1 and 2, does not flow logically and directly from the issue placed before the Court of Appeal at pages 165 and 224 of the Record, nor does it flow from the correct decision of the trial Court at pages 40 and 80 of the Record. I have my serious doubts about the competence of grounds 1 and 2, and Issue 3 raised therefrom. The issue is incompetent.
In any case, the Appellant has not shown how the discharge of the recalled witnesses has occasioned any miscarriage of justice to him. We have not been told what they were recalled for. Neither the trial Court nor the prosecuting team were told the purport of their recall or the material evidence they were recalled for their further cross-examination on.
My learned brother, HON. AMINA A. AUGIE, JSC, has in the Lead Judgment just delivered, upon the exhaustive review of the issues canvassed vis-a-vis the decision appealed, demonstrated the futility of this appeal. I adopt the Judgment. There being no substance in this appeal, it is hereby dismissed. The decision of the Court of Appeal affirming the conviction and sentence of the Appellant by the trial Court is hereby affirmed.

PAUL ADAMU GALINJE, J.S.C.: 
I have had the privilege of reading in draft the judgment just delivered by my Learned brother Augie JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The facts of this case have been elaborately set out in the lead judgment. The Appellant did confess to the commission of the offence in his extra-judicial statements Exhibits 2 and 3, that he was in the house of his former wife, PW4 around 12 midnight where he met the deceased and they fought each other.
Evidence of the prosecution witnesses though circumstantial irresistibly point to the Appellant as the one who stabbed the deceased with intention to kill him. This is so because PW4 overheard the deceased asking the appellant, “Are you going to kill me?” The medical report dispelled the evidence of the appellant that when he and the deceased were struggling, they fell down on pieces of broken mirror, and after that he went home.
The medical report, Exhibit 4 clearly stated that the deceased was stabbed with a knife.
My Learned brother as usual, has thoroughly dealt with all the issues submitted for determination of this appeal in his judgment which I adopt as mine.
For the same reasoning adumbrated in the lead judgment, this appeal shall be and it is hereby dismissed by me.
Appearances

Tajudeen O. Oladoja, Esq. with him, Muritala Abdul-Rasheed, Esq., Olalekan Thanni, Esq, Ahmed Gobir, Esq., and Barnabbas John, Esq. – For Appellant

AND

Sakinatu Hassan Idris, Esq. with him, Binta Baba, Esq. – For Respondent

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