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TUKSA v. FRN (2021)

TUKSA v. FRN

(2021)LCN/15677(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, December 03, 2021

CA/LAG/CR/571/2020

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

JAMES PAUL TUKSA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

WHETHER OR NOT A TRIAL-WITHIN-TRIAL IS A TRIAL ON ITS OWN

Now, it is trite that a trial-within-trial despite being part of the full trial is a distinct trial on its own. It follows the procedure of a regular trial where witnesses are called to determine the voluntariness or otherwise of a confessional statement sought to be tendered. After this mini-trial, counsel for the parties file and adopt their final addresses and the Court delivers a ruling whereby the Court admits the confessional statement in evidence or rejects same. See Section 29(2) and (3) of the Evidence Act, 2011 as well as IDAGU V. STATE (2018) LPELR–44343 (SC); OJOH V. THE STATE OF LAGOS (2021) 3 NWLR (PT. 1764) 462. PER UMAR, J.C.A.

WHETHER OR NOT AN APPELLANT HAS A RIGHT TO COMPLAIN AGAINST THE FAILURE OF A LOWER COURT TO PRONOUNCE ON AN ISSUE RAISED BY HIM

 An Appellant has every right to complain against the failure or refusal of a lower Court to pronounce on an issue raised by him. To insist that an Appellant cannot protest against such an omission by a lower Court because the complaint does not arise from the ratio decidendi appealed against would be disingenuous. In AKPAN VS. BOB & 4 ORS. (2010) 4-7 S. C. (PT. II) 57 the Supreme Court held that apart from arising from the ratio decidendi, grounds of appeal may also arise from: (a) the decision appealed against; (b) the procedure under which the claim was initiated; (c) the procedure under which the decision was rendered; (d) other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates, or (e) the commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. See also OKORIE V. OKORIE & ORS (2019) LPELR–46612 (CA); WAZIRI V. SULEIMAN (2018) LPELR–46345 (CA).  PER UMAR, J.C.A.


WHETHER OR NOT AN ACCUSED PERSON MUST BE PRESENT THROUGHOUT THE ENTIRETY OF HIS TRIAL

Now that it is confirmed that the Appellant and both counsel were absent on the date of the delivery of the ruling in the trial-within-trial, what effect does this have on the trial-within-trial proceedings? It is now settled that an accused person has a right to be present throughout the entirety of his trial which includes not only the calling of witnesses, but also during judgment and sentencing. See STATE V. LAWAL (2013) 7 NWLR (PT. 1354) 565. In the instant appeal, not only was the Appellant and counsel absent from Court on the date of delivering the ruling, the ruling was actually delivered on a day other than the date for which it was slated. In such a situation, the issuance and service of hearing notice was a condition precedent to the continuation of the proceedings. Failure to notify the Appellant or his counsel of the new date fixed for ruling after the disruption amount to an infraction of his right to fair hearing, more so in criminal proceedings such as this. See A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436; NWEKE V. FRN (2016) LPELR – 41525 (CA). 
From all that I have said, there is no gainsaying that the Appellant’s right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was violated by the delivery of the ruling in trial-within-trial in his absence and failure to give him notice of the date of the delivery. When denial of fair hearing is established, it is immaterial whether if the right thing had been done, the decision would still be the same, neither is it necessary for the disadvantaged party to show that he has suffered any injustice therefrom. As long as the denial of the fundamental right to fair hearing is breached, the proceedings emanating therefrom will be declared null and void and liable to be set aside. See ARIJE V. ARIJE & ORS (2018) LPELR–44193 (SC); BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290; CANAAN ESTATES AND HOMES LTD V. AJOSE & ANOR (2018) LPELR–46042 (CA).
PER UMAR, J.C.A.

THE IMPORTANCE OF EVIDENCE IN LITIGATION

The importance of evidence in litigation, civil or criminal cannot be overemphasized. They provide the Court with the material with which the issues in dispute are determined. Without evidence, cases would be determined according to the whims, caprices and speculations of Judges. It is against this backdrop that a Court has a duty to sift through evidence led before it to determine which is credible and reliable in order to base its decision on credible and admissible evidence. See ONAFOWOKAN V. STATE (1986) 2 NWLR (PT. 23) 496. 
Once evidence has been obtained, the prosecution has a duty to ensure that every possibility of the evidence being tampered with or replaced or excluded is avoided. Once an opportunity for the tampering or replacement of evidence exists, there is a reasonable doubt as to whether the evidential material that was obtained was the same that was tendered at trial. See UGWANYI V. FRN (2010) 14 NWLR (PT. 1213) 397. PER UMAR, J.C.A.

WAYS THE PROSECUTION CAN DISCHARGE THE BURDENOF PROOF BEYOND REASONABLE DOUBT

It is important to also state that the law is trite that the prosecution can discharge the burden of proof beyond reasonable doubt by (a) evidence of an eye–witness who saw the commission of the offence or (b) by voluntary confession of the accused person or (c) by circumstantial evidence. See among the plethora of authorities on this principle of law, STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 AT 416 (D–G) 433 (B–D); TOPE V. STATE (2019) 15 NWLR (PT.1695) 289 AT 300-301 (G-A). PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered by A.O. Faji, J. of the Federal High Court, Lagos Judicial Division on 13th March, 2020 wherein the learned trial Judge convicted the Appellant for offences under Section 15(1)(b) of the Terrorism (Prevention) Act, 2013; Section 24(2) of the Cybercrimes (Prohibition, Prevention, Etc.) Act, 2015 and Section 390(9) of the Criminal Code and sentenced him to 10 years imprisonment for the first count, 5 years imprisonment for the second count and another term of 5 years for the third count respectively but all terms to run concurrently.

BRIEF FACTS OF THE CASE
The Appellant was tried on an Amended Charge filed on 9th May, 2018 with the following counts:

COUNT 1:
That you, James Paul Tuksa, ‘m’ sometime in October, 2016 at No.4A, Ibironke Crescent, Park view Estate, Ikoyi, Lagos State, within the jurisdiction of the Federal High Court of Nigeria did knowingly threaten to kill the members of the family of VICTOR OMOTAYO AWOSIKA of No. 2, Ibironke Crescent, Park View Estate, Ikoyi, Lagos through a phone call to VICTOR OMOTAYO AWOSIKA if the latter could not make provision of a sum of Five Million Naira (N5m), for you and thereby committed an offence contrary to Section 15(1) (b) of the Terrorism (Prevention) (Amendment) Act, 2013 and punishable under the same Section of the Act.
COUNT 2:
That you, James Paul Tuksa, ‘m’ sometime in October, 2016 at No.4A, Ibironke Crescent, Park view Estate, Ikoyi, Lagos State, within the jurisdiction of the Federal High Court of Nigeria knowingly and intentionally transmitted or caused the transmission of a text message containing threat to life through an Etisalat mobile phone number, 09085694295 to VICTOR OMOTAYO AWOSIKA & HIS FAMILY of No. 2, Ibironke Crescent, Park View Estate, Ikoyi, in (sic) his own phone number, +2348052960000, to make available the sum of Five Million Naira (N5m) for you, and such threat placed him and his family in fear of death, violence or bodily harm and thereby committed an offence contrary to Section 24 (2) (a) of the Cybercrimes (Prohibition, Prevention, Etc) Act. 2015 and punishable under Section 24 (2) (i) of the same Act.
COUNT 3:
That you, James Paul Tuksa on or about 10th October, 2016 at No. 2 Ibironke Crescent Park View Estate, Ikoyi Lagos within the jurisdiction of the Federal High Court of Nigeria, did fraudulently steal the sum of Five Million Naira (N5m) property of VICTOR OMOTAYO AWOSIKA and thereby committed an offence punishable under Section 390 (9) of the Criminal Code Cap 38 Laws of the Federation of Nigeria, 2004.

​The Appellant pleaded not guilty to all three counts and the matter proceeded to trial. The Respondent as Prosecution called two (2) witnesses and tendered exhibits, including Exhibits T1 and T2, the Appellant’s confessional statement. On the other hand, the Appellant as accused person testified alone in his defence. 

It was the case of the Respondent that the Appellant, a security guard in Parkview Estate, Ikoyi threatened the life of PW2 with phone calls and text messages via his Etisalat number except PW2 gave him the sum of N5,000,000.00 (Five million Naira) by dropping same under a golden Honda car parked in front of his house. That the Appellant reported the matter to the Department of State Security (DSS) and a sting operation was conducted wherein a carton of money was placed under the said car and the Appellant was arrested after picking up the carton. In the course of PW1’s testimony, the voluntariness of the Appellant’s confessional statement was challenged by the Defence counsel and a trial-within-trial was conducted and the statements were admitted in evidence. 

The case of the Appellant was that he was about to sit down on his boss’ car parked in the street when some people came out of his neighbour’s house and arrested him.

At the conclusion of trial and after the adoption of final addresses, the learned trial Judge convicted the Appellant of all three counts and sentenced him accordingly. The Appellant being dissatisfied with the verdict of the trial Court has appealed to this Court via a Notice of Appeal which has been amended. The Amended Notice of Appeal was filed on 25th September, 2020 and deemed properly filed on 8th July, 2021. The said Amended Notice of Appeal contains six grounds of appeal which are reproduced hereunder without their particulars:
“GROUND ONE
The learned trial Judge misdirected himself when he held that the testimonies of PW1 and PW2 were of compelling nature and negated whatever shortcomings there may be as regards the confessional statement of the Appellant and that outside the said confessional statement, there was compelling evidence of the Appellant’s guilt and thereby occasioned a miscarriage of justice to the Appellant.
GROUND TWO
The learned trial Judge misdirected himself when he relied partly on the purported confessional statement of the Appellant, Exhibit TI & T2, in convicting him with respect to the offences preferred against him in this case and thereby occasioned a miscarriage of justice to the Appellant.
GROUND THREE
The learned trial Judge failed to properly evaluate evidence in this case when he convicted the Appellant of the three-count charge in this case and thereby occasioned a miscarriage of justice to the Appellant.
GROUND FOUR
The learned trial Judge misdirected himself when he made the finding to the effect that PW2 having put the money under a car parked in front of his residence, the DSS was appropriately stationed and arrested the Appellant as soon as he picked the money from under the car and that both PW1 and PW2 were in unison that the Appellant was arrested as he picked the money placed under the car, thereby occasioning a miscarriage of justice to the Appellant.
GROUND FIVE
The learned trial Judge misdirected himself when he held that the printout, Exhibits U1-U5, were in relation to the number from which the Appellant called the Plaintiff and that the printout is with the same text messages sent to PW2 and that it was sufficient identification of the printout so as to link it with the Appellant and the messages sent to PW2 from the phone seized from the Appellant.
GROUND SIX
The learned trial Judge erred in law when he convicted the Appellant of the alleged offences in this case even when the Prosecution failed to prove the case against the Appellant beyond reasonable doubt and thereby occasioned a miscarriage of justice to the Appellant.”

​In line with the Rules and practice of this Court, counsel for the parties filed and exchanged their briefs of argument in support of their respective postures in this appeal. The Appellant’s brief of argument and reply brief were settled by U.C. IKEGBULE, ESQ. The said Appellant’s brief was filed on 25th September, 2020 and deemed properly filed and served on 8th July, 2021, while the reply brief was filed on 12th July, 2021. 

The Respondent’s brief of argument which was settled by ONYEKA CHINWE ANIGBOGU, ESQ, Prosecutor in the Department of Public Prosecutions of the Federation was filed on 9th February, 2021 and deemed properly filed on 8th July, 2021. The appeal was heard on 11th October, 2021.

APPELLANT’S ARGUMENTS AND SUBMISSIONS
Counsel for the Appellant distilled three issues for the determination of the appeal thus:
i. “Whether the learned trial Judge was right in law in admitting the Appellant’s purported confessional statement, Exhibit T1 & T2, at a proceeding conducted in the absence of the Appellant and his counsel without any notice of the proceeding being given to the Appellant or his counsel and partly using same in convicting the Appellant in the circumstances of this case? This issue is based on ground two of the amended grounds of appeal.
ii. Whether the learned trial Judge properly evaluated the evidence adduced at the trial when he convicted the Appellant of the offences charged against him in this case? This issue is formulated from grounds 1, 3, 4 and 5 of the amended grounds of appeal.
iii. Whether the Prosecution did not fail to prove her case against the Appellant in this case beyond reasonable doubt? This issue is formulated from ground 6 of the grounds of Appeal.”

Arguing issue one, counsel submitted that after the adoption of final addresses in the trial-within-trial, the matter was adjourned to 13th April, 2018 for ruling, but the ruling was delivered on 12th April, 2018 in the absence of the Appellant and counsel on both sides. He referred to page 46 of the Record of Appeal. It was further submitted that there is no record of service of hearing notice on either of the counsel, particularly, the Appellant’s Counsel, informing them that the case was to come up on 12th April, 2018 and no record of any production warrant issued for the production of the Appellant in Court on 12th April, 2018, when the said ruling was delivered. He submitted that this procedure is contrary to Section 266 of the Administration of Criminal Justice Act, 2015 (ACJA) and the case of ADEOYE V. THE STATE (1999) 4 S.C. (PT. II) 67 and thus, amounted to a nullity. 

​Counsel submitted that the trial Court was in error when he failed to make any finding with respect to the said issue and, instead, proceeded to convict the Appellant partly on the purported confessional statement and other pieces of evidence. He cited Section 36(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the cases of ARAKA V. EJEAGWU (2000) 12 S.C. (PT. 1) 99; ADEJUGBE V. OLOGUNJA (2004) 2 S.C. (PT. II) 44; IHEANACHO VS. CHIGERE (2004) 48 W.R.N. 1; UZUDA VS. EBIGAH (2009) 15 NWLR (PT. 1163) 1; FEDERAL CIVIL SERVICE COMMISSION V. LAOYE (1989) 2 NWLR (PT. 106) 652; OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & ORS. (1993) 6 NWLR (PT. 226) PAGE 344; IDAKWO V. EJIGA (2002) 39 WRN 29; FRN V. AKUBUEZE(2010) 17 NWLR (PT. 1223) 525 and submitted that a trial or an intermediate appellate Court has a duty to consider all issues properly raised before it as failure to do so would amount to a denial of fair hearing to the party adversely affected by the issue which was raised but not decided by the Court. 

Counsel therefore submitted that the proceeding of the 12th April, 2019 wherein Exhibit T1 and T2 i.e. the Appellant’s confessional statements were admitted in evidence is a nullity and liable to be set aside ex debito justitiae.

Counsel submitted that assuming the proceedings admitting Exhibits T1 and T2 in evidence are not a nullity, the learned trial Judge erred in relying on the exhibits without applying the six tests to be applied to a retracted confessional statement as established in judicial authorities such as DAWA V. STATE (1980) 8-11 S.C. 236; UBIERHO V. STATE (2005) Q.C.C.R. VOL. 2 96; R V. SYKES (1913) 6 CAR 233; AKINFE V. STATE (1988) 3 NWLR (PT. 85) 729; ONOCHIE & ORS V. THE REPUBLIC (1966) NMLR 307. It was submitted that the evidence of PW1 was to the effect that the Appellant was arrested after he picked up the carton of money, while PW2 testified that the Appellant was arrested while he was reaching for the money. 

It was also submitted that the evidence of PW2 as regard the CCTV recording is unreliable because he admitted that part of the CCTV footage had been edited out. That this raises a presumption that if that part of the footage had been produced, it would have resolved the case in favour of the Appellant. He relied on Section 167(d) of the Evidence Act and AKINFE V. STATE (supra). He further submitted that whilst PW2 testified that he put the money in a white cardboard box (not a carton), PW1 testified that the money was put in a carton (instead of a cardboard box), thereby raising doubt as to whether PW1 and PW2 were narrating the same state of fact. He urged this Court to resolve the issue in favour of the Appellant.

On issue two, learned counsel submitted that where a trial Court approaches the evidence called by the parties to a case wrongly, the appellate Court will have no alternative than to allow the appeal. He referred to MORENIKEJI V. ADEGBOSIN (2003) 25 W.R.N. 33; NNAJIFOR & ORS V. UKONU & ORS (1986) 4 NWLR (PT. 36) 505; ODIAWA V. FRN (2008) 51 WRN 83. That the finding of guilt against the Appellant was based on improper evaluation of the totality of the evidence on record as the learned trial Judge failed to take into account the probabilities and/or improbabilities presented by the surrounding circumstances and facts on record and instead, accepted the testimonies of PW1 and PW2 as compelling proof of the guilt of the Appellant without weighing the testimonies against such probabilities and/or improbabilities. He submitted that other persons were arrested on the night of the Appellant’s arrest, but only the Appellant was proceeded against.

It was further submitted that there is a world of difference between attempting to take something and the actual taking of the thing. That in the former, the implication is that the Appellant is not guilty of stealing or conversion but may be guilty of attempted stealing while in the latter, the legal effect is that the Appellant could be guilty of stealing or conversion of the money. That the two versions are inconsistent and it is not open to the trial Court to pick and choose which of the two versions to believe. Reference was made to IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455; ONUOHA V. THE STATE (1989) NWLR (PT. 101) 23.

​Learned counsel also submitted that under cross-examination, PW2 admitted that it was not unusual for the Appellant to be seen within the vicinity of the area where he was arrested as he was the security guard of PW2’s neighbour. That the learned trial Judge was guilty of speculating and replacing his opinions with the evidence on record when he asked why the Appellant was loitering at night. The cases of AIGUOREGHIAN V. STATE (2004) ALL FWLR (PT. 195) 716; SHALLA V. STATE (2007) 18 NWLR (PT. 1066) 240 S.C.; THE STATE V. AIBANGBEE (1988) 3 N.W.L.R (PT. 84) 548; IDOWU V. STATE (2000) 7 S. C. (PT. II) 50; EBBA V. OGODO (2003) 41 W.R.N. 70 were relied on.

He further submitted that there was no evidence linking the Appellant with the number which was used to threaten PW2 through phone calls and text messages. He therefore submitted that what the learned trial Judge did in the circumstance, amounted to doing cloistered justice and a descent into the arena of conflict. Reliance was placed on the cases of ONIBUDO & ORS. V. AKIBU & ORS.(1982) 7 S.C. 60; SHODEINDE V. AHMADIYYA MOVEMENT IN ISLAM (1983) 2 SCNLR. 284; J. B. SOBOYEDE & ORS. V. MINISTER OF LANDS AND HOUSING, WESTERN NIGERIA (1974) ALL N.L.R. 369, TERAB V. LAWAN (1992) 3 N.W.L.R. (PT.231) 569. He urged the Court to also resolve issue two in favour of the Appellant.

​On issue three, learned counsel submitted that in a criminal trial, the Prosecution has a duty to prove the guilt of the accused person beyond reasonable doubt. Reference was made to Section 135(1) and (2) of the Evidence Act, 2011 and ODEN V. F.R.N. (2002) VOL. 13 W.R.N. 31. That the burden on the Prosecution is not relieved even if the trial Judge disbelieves the defence put forward by the accused person. He referred to UZOKA V. STATE (1990) 6 N.W.L.R (PT. 159) 680. 

It was further submitted that the Respondent failed to lead credible and convincing evidence to show that there was any offence committed, let alone pinning the commission of the alleged offences on the Appellant. That what is left of the case of the Prosecution, is merely circumstantial evidence which is required to be consistent, cogent, compelling and irresistibly leads to only the guilt of the accused person. Reliance was placed on OBIAKOR V. STATE (2002) 36 W.R.N. 1; POPOOLA V. C.O.P. (1964) N.M.L.R. 1. It was submitted that the Respondent failed to adduce such consistent, cogent, compelling and irresistible evidence at trial. 

​Counsel finally urged the Court to allow the appeal, set aside the conviction and sentence handed down by the trial Court against the Appellant and to acquit and discharge him.

RESPONDENT’S ARGUMENTS AND SUBMISSIONS
Respondent’s counsel adopted the issues formulated by the Appellant’s counsel. 

Arguing issue one, counsel submitted that the Appellant complained of trial-within-trial, which is an interlocutory decision and the appeal against same ought to have been filed within 14 days or after an order for extension of time had been sought and obtained. He relied on Section 24 of the Court of Appeal Act as well as the case of LADIPO. V. SIL CHEMICAL LIMITED (2019) LER CA/L/808/2017. That the Appellant’s Notice of Appeal filed out of time without an application for leave for extension of time within which to appeal on the ground two therein and issue one in his brief of argument are incompetent. It was further submitted that the Appellant’s ground two having been distilled from the trial-within-trial is incompetent as same does not emanate from the ratio decidendi of the judgment appealed against.

He submitted that assuming the Appellant properly raised the ground two of his Notice of Appeal, Section 266 of ACJA and the case ofADEOYE V. THE STATE (supra) relied on by the Appellant are not helpful to his case. That the Appellant was present in Court throughout his trial as required by Section 266 of ACJA and the facts of ADEOYE V. THE STATE (supra) are different from the facts of this appeal. Counsel submitted that the prosecution in that case called an eyewitness in the absence of the accused person who was in prison custody and he was convicted on the strength of the eyewitness’ testimony. On the contention of the Appellant that the trial Court failed to make any finding on the complaint of the Appellant with respect to admission of his confessional statement, it was submitted that once a Court has delivered its decision on a matter, it becomes functus officio and cannot re-open the matter for any purpose except in appropriate cases. The case of ELIAS V. ECOBANK (2016) NGCA 62 was referred to. He submitted that the Appellant has not shown how the ruling of the trial Court on the trial-within-trial occasioned a miscarriage of justice to him given that he conducted his trial through his counsel and he testified during the trial in person. The following cases were relied on:EZEUGO V. AGIM (2015) LPELR–24572 (CA); GBADAMOSI V. DAIRO (2007) 3 NWLR (PT. 1021) 282; OKE V. MIMIKO & ORS (2014) 1 NWLR (PT 1388) 332, AIGBOBAHI V. AIFUWA (2006) 6 NWLR (PT. 979) 270. 

It was the further submission of learned counsel that although the trial Court is not bound by the six tests to test the veracity of a retracted confessional statement, it applied same to ascertain the truth in the matter before reaching its decision. Relying on HASSAN V. THE STATE (2001) 9 S.C. 281, it was submitted that by virtue of Section 27(1) of the Evidence Act, a confessional statement can be the sole basis of a conviction. 
It was further submitted that there were no material contradictions in the testimony of PW1 and PW2 and that any contradictions therein were negligible as the testimony of two witnesses cannot be exactly the same. That the testimony of both witnesses established that the Appellant went for a box of money which was placed under a Honda car, and does not confirm the story of the Appellant who claimed to be sitting on the car. Reliance was placed on DIBIE V. STATE (2007) ALL FWLR (PT 363) 83; OKON V. STATE (2014) LPELR–22446 (CA); ABDULLAHI V. STATE (2018) LPELR–45833 (CA); IGBI V STATE (2000) 3 NWLR (PT 648) 169; ISIBOR V. STATE (2002) 4 NWLR (PT 758) 741; YAKUBU V. STATE (2019) LPELR–49361 (CA).

On the argument of the Appellant that PW2 deliberately destroyed some part of the CCTV recording that would have strengthened the Appellant’s case, it was submitted that PW2 made it clear in his testimony that the part of the CCTV recording that was edited was the part that was not relevant to the case and that the device is a surveillance camera and as such, it records the whole events in the area it covers. That the CCTV recording does not amount to hearsay under Section 37 of the Evidence Act and meets the requirement for admissibility under Section 84(2) of the Evidence Act. He referred to BRILA ENERGY LTD V. FRN (2018) LPELR–43926 (CA).

In response to the assertion of the Appellant that the contents of the phones found with the Appellant was not profiled and can thus not be linked to the Appellant, counsel submitted that the Respondent tendered a printout of the call and log of the texts sent to PW2 and the printout was gotten in line with the requirements of Section 84(4) and (5) of the  Evidence Act. That PW2 also testified in Court to have received such threats through calls and texts. He referred to the cases of P.D. HALLMARK CONTRACTORS NIGERIA LTD & ANOR V. GOMWALK (2015) LPELR-24462 (CA); ROWAYE V. FRN & ORS (2018) LPELR-45650 (CA), KUBOR & ANOR V. DICKSON & ORS (2012) LPELR–15364 (CA). He also submitted that the learned trial Judge properly considered all the evidence before him before giving his decision.

Arguing issue two, learned counsel submitted that the learned trial Judge considered the ingredients of all the offences charged and was satisfied of the Appellant’s guilt before delivering his judgment. That the witnesses called by the Respondent credibly met the requirements laid down in ONUOHA & V. STATE (1989) NWLR (PT. 101) 23. 

On issue three, counsel submitted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. He relied on MILLER V. MINISTER OF PENSIONS (1947) 2 ALL ER 372; OREOLUWA ONAKOYA V. FRN (2002) 11 NWLR (PT. 779) 595; EMEKA VS THE STATE (2001) 14 NWLR (PT.736) 666. It was further submitted that the guilt of the Appellant was established through direct, circumstantial and circumstantial evidence. He finally urged the Court to dismiss the appeal and uphold the judgment of the trial Court.

APPELLANT’S REPLY BRIEF
It was further submitted that a Court has a duty to ensure that its proceedings are valid and where a trial Court fails to do so, such failure constitutes a valid ground of appeal against a final judgment of the Court and not an issue for interlocutory appeal. Hence, it was not too late for the Appellant to complain against the error made by the trial Court in respect with the events that transpired in the trial-within-trial in his appeal against the final judgment. Reference was made to SHANU V. AFRIBANK PLC (2003) 4 W.R.N. 42; AJAYI V. FISHER (1956) S.C.N.L.R 279, KALE V. COKER (1982) 12 S. C. 252.

​In response to the Respondent’s argument that once a Court has delivered its decision on the matter, it becomes functus officio, it was submitted that the principle is only applicable to a final decision of a Court or to an issue upon which a Court had taken a position on in an earlier ruling in the case or matter so as to say that the Court is estopped from changing the outcome of its decision that was in favour of one of the parties which has nothing to do with a fundamental error, either of law or procedure. Reference was made to SHANU V. AFRIBANK PLC (supra); AJAYI V. FISHER (supra); KALE V. COKER (SUPRA); SKENCONSULT (NIG.) LTD. & ANOR V. OKEY (SUPRA); OBIMONURE V. ERINOSHO (SUPRA). 

Counsel again urged the Court to allow the appeal, set aside the conviction and sentence of the Appellant by the trial Court and accordingly, acquit and discharge him on all of counts of the Amended Charge.

RESOLUTION
I have perused the record of appeal compiled and transmitted to this Court, I have carefully considered all exhibits tendered at trial and the briefs filed by counsel, the issues distilled by counsel for the parties and their arguments are well noted. Hence, I shall adopt the issues distilled by Appellant’s counsel and adopted by counsel for the Respondent for the determination of this appeal. For the sake of clarity, the said issues are hereunder produced:
i. “Whether the learned trial Judge was right in law in admitting the Appellant’s purported confessional statement, Exhibit T1 & T2, at a proceeding conducted in the absence of the Appellant and his counsel without any notice of the proceeding given to the Appellant or his counsel and partly using same in convicting the Appellant in the circumstances of this case?
ii. Whether the learned trial Judge properly evaluated the evidence adduced at the trial when he convicted the Appellant of the offences charged against him in this case?
iii. Whether the Prosecution did not fail to prove her case against the Appellant in this case beyond reasonable doubt?

RESOLUTION OF ISSUE ONE
I will commence the resolution of this issue by addressing the Respondent’s objection to ground two in the Amended Notice of Appeal and the issue one distilled therefrom. The complaint of the Respondent is twofold. Firstly, it contends that the Appellant having not appealed against the decision of the trial Court in the trial-within-trial and having not sought and obtain leave of this Court to appeal against same being an interlocutory appeal cannot raise the issue in this appeal. Secondly, it was contended the ground does not emanate from the ratio decidendi of the judgment appealed against, but from the decision in the trial-within-trial. The Appellant in response submitted that the ground raises the fundamental issue of fair hearing and was properly raised. 

Now, it is trite that a trial-within-trial despite being part of the full trial is a distinct trial on its own. It follows the procedure of a regular trial where witnesses are called to determine the voluntariness or otherwise of a confessional statement sought to be tendered. After this mini-trial, counsel for the parties file and adopt their final addresses and the Court delivers a ruling whereby the Court admits the confessional statement in evidence or rejects same. See Section 29(2) and (3) of the Evidence Act, 2011 as well as IDAGU V. STATE (2018) LPELR–44343 (SC); OJOH V. THE STATE OF LAGOS (2021) 3 NWLR (PT. 1764) 462. The ruling delivered in a trial-within-trial is no doubt an interlocutory decision which can and ought to be appealed against if the accused person wishes that an appellate Court reverses the decision reached therein. The trial Court delivered its ruling in the trial-within-trial on 12th April, 2018, while the original Notice of Appeal in this appeal was filed on 4th July, 2020, a period well beyond the ninety (90) days prescribed under Section 24(2)(b) of the Court of Appeal Act.

Ground two of the Amended Notice of Appeal together with its particulars goes thus:
“GROUND TWO
The learned trial Judge misdirected himself when he relied partly on the purported confessional statement of the Appellant, Exhibit T1 & T2, in convicting him with respect to the offences preferred against him in this case and thereby occasioned a miscarriage of justice to the Appellant.
PARTICULARS OF MISDIRECTION
1. The purported confessional statement of the Appellant was admitted in evidence by the learned trial Judge in a proceeding conducted in the absence of the Appellant and his counsel without any notice of the proceedings being served on them, contrary to the Appellant’s constitutional right to fair hearing and the provisions of Section 36(4) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Section 266 of the Administration of Criminal Justice Act, 2015 and the decision of the Supreme Court in the case of Adeoye v. The State (1999) 4 S.C. (PT. II) 67 at page 71.
2. The learned trial Judge failed to decide on the issue pertaining to the validity of admitting the purported confessional statement of the Appellant in evidence in a proceeding conducted in the absence of the Appellant and his counsel without notice to them which was duly raised before the Court. 
3. The Appellant retracted Exhibits T1 & T2 at the trial and the learned trial Judge ought to have established all the six established necessary to be satisfied by the trial Court before it can validly convict on a retracted confessional statement but the learned trial Judge failed to do so.
4. There was no credible evidence establishing the veracity of the Appellant’s confessional statement and the testimonies of PW1 and PW2 which the learned trial Judge relied upon as evidence outside the purported confessional statement, Exhibits T1 and T2, establishing the guilt of the Appellant was improperly evaluated by the Judge. “

​From the foregoing, it is crystal clear that ground two of the Amended Notice of Appeal cannot be said to be challenging the decision of the trial Court during the trial-within-trial, rather, the Appellant sought to challenge the reliance placed by the learned trial Judge on Exhibits T1 and T2 in convicting the Appellant. This is no doubt a challenge against the final judgment appealed against and it was validly raised in the Amended Notice of Appeal as it constitutes a challenge on the final judgment of the trial Court. Ground two and issue one distilled therefrom are therefore competent. The Respondent’s complaint against ground two and issue one is therefore discountenanced. 

Also, the Respondent complained that the ground does not emanate from the ratio decidendi of the decision appealed against. Respectfully, I disagree with this position. An Appellant has every right to complain against the failure or refusal of a lower Court to pronounce on an issue raised by him. To insist that an Appellant cannot protest against such an omission by a lower Court because the complaint does not arise from the ratio decidendi appealed against would be disingenuous. In AKPAN VS. BOB & 4 ORS. (2010) 4-7 S. C. (PT. II) 57 the Supreme Court held that apart from arising from the ratio decidendi, grounds of appeal may also arise from: (a) the decision appealed against; (b) the procedure under which the claim was initiated; (c) the procedure under which the decision was rendered; (d) other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates, or (e) the commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. See also OKORIE V. OKORIE & ORS (2019) LPELR–46612 (CA); WAZIRI V. SULEIMAN (2018) LPELR–46345 (CA). 

The Appellant’s grouse that the trial Court failed to pronounce on the validity of the proceedings leading to the admission of Exhibits T1 and T2 in evidence was therefore validly raised.

​The chief grouse of the Appellant under issue one is that the trial Court delivered the ruling in the trial-within-trial in the absence of counsel for the parties and the Appellant himself without any notice to the parties. A look at page 28B of the record of appeal would make known that the learned trial Judge on 27th February, 2018 adjourned for ruling in the trial-within-trial to 13th April, 2018. However, in somewhat surprising circumstances, the ruling was delivered on 12th April, 2018. There is nothing on record to indicate that notice was given to counsel for the parties or to the Appellant of the new date. At page 46 of the record, the record of the trial Court confirms the absence of the counsel for the parties and the Appellant. Ordinarily, this ought to have prompted the Court to be vigilant and check its record to confirm whether indeed the matter was adjourned to that day and whether parties and counsel had notice of the date, but the Court apparently exercised no such diligence.

Now that it is confirmed that the Appellant and both counsel were absent on the date of the delivery of the ruling in the trial-within-trial, what effect does this have on the trial-within-trial proceedings? It is now settled that an accused person has a right to be present throughout the entirety of his trial which includes not only the calling of witnesses, but also during judgment and sentencing. See STATE V. LAWAL (2013) 7 NWLR (PT. 1354) 565. In the instant appeal, not only was the Appellant and counsel absent from Court on the date of delivering the ruling, the ruling was actually delivered on a day other than the date for which it was slated. In such a situation, the issuance and service of hearing notice was a condition precedent to the continuation of the proceedings. Failure to notify the Appellant or his counsel of the new date fixed for ruling after the disruption amount to an infraction of his right to fair hearing, more so in criminal proceedings such as this. See A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) 436; NWEKE V. FRN (2016) LPELR – 41525 (CA). 
From all that I have said, there is no gainsaying that the Appellant’s right to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was violated by the delivery of the ruling in trial-within-trial in his absence and failure to give him notice of the date of the delivery. When denial of fair hearing is established, it is immaterial whether if the right thing had been done, the decision would still be the same, neither is it necessary for the disadvantaged party to show that he has suffered any injustice therefrom. As long as the denial of the fundamental right to fair hearing is breached, the proceedings emanating therefrom will be declared null and void and liable to be set aside. See ARIJE V. ARIJE & ORS (2018) LPELR–44193 (SC); BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290; CANAAN ESTATES AND HOMES LTD V. AJOSE & ANOR (2018) LPELR–46042 (CA).

In arguing that the proceedings of the trial-within-trial are not a nullity, the Respondent referred to Section 33 of the Federal High Court Act to the effect that the trial Court has jurisdiction to try criminal cases summarily. With due respect, this argument does not hold water when the circumstances of this case are considered. The trial of the Appellant was not conducted summarily. Is counsel saying that the trial was only conducted summarily on the day of the delivery of the ruling or was the ruling delivered summarily as such that the presence of the Appellant could be dispensed with? This submission of counsel for the Respondent is indeed laughable! The mode of conduct of the trial cannot oscillate between summary trial and a full trial from day to day. The said Section cannot be used to make up for the denial of the Appellant’s right to fair hearing.

Flowing from the heels of the above, the entire trial-within-trial proceedings are hereby declared a nullity and Exhibits T1 and T2 admitted in evidence by virtue of those proceedings are hereby expunged from the records. Issue one is therefore resolved in favour of the Appellant and against the Respondent.

The mere fact that Exhibits T1 and T2 have been expunged from the records does not translate to the automatic success of the appeal. This Court has to go further to consider whether the decision of the lower Court would have been different if those exhibits were never admitted in evidence. This is in line with Section 251 of the Evidence Act which provides thus: 
“(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.
(2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the Court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same.
(3) In this Section the term “decision” includes a judgment, order, finding or verdict.”
I shall therefore proceed to consider issues two and three together. 

ISSUES TWO AND THREE
The Appellant contended that the CCTV recording tendered by PW2 ought not to have been relied upon by the trial Court as part of it had been edited out. Respondent’s counsel in his brief submitted that CCTV captures the whole area and that the part edited out are parts that are irrelevant to the case. 

​The importance of evidence in litigation, civil or criminal cannot be overemphasized. They provide the Court with the material with which the issues in dispute are determined. Without evidence, cases would be determined according to the whims, caprices and speculations of Judges. It is against this backdrop that a Court has a duty to sift through evidence led before it to determine which is credible and reliable in order to base its decision on credible and admissible evidence. See ONAFOWOKAN V. STATE (1986) 2 NWLR (PT. 23) 496. 

Once evidence has been obtained, the prosecution has a duty to ensure that every possibility of the evidence being tampered with or replaced or excluded is avoided. Once an opportunity for the tampering or replacement of evidence exists, there is a reasonable doubt as to whether the evidential material that was obtained was the same that was tendered at trial. See UGWANYI V. FRN (2010) 14 NWLR (PT. 1213) 397. 

The word “tamper” is defined by wikitionary.org as “to make unauthorized or improper alterations, sometimes causing deliberate damage, to meddle (with something).” 

In the instant case, not only did the possibility of tampering with evidence exist, the complainant who was PW2 at trial testified under cross-examination at page 139 of the record of appeal thus:
“Defense counsel: You have watched the CCTV footage played in this Court. The footage does not capture all the events of the night.
PW2: It doesn’t.
Defense counsel: Will I be correct to say that you were the one that edited the other events of the night that were captured on that night?
PW2: I don’t understand the question.
Defense counsel: You were the one that edited out the other events of that night which ought to appear in that CCTV.
PW2: I edited out the other parts that are not relevant to this case.”

The defence of PW2 to tampering with the CCTV footage was that he only edited out the part that are not relevant to the case. Whether the part edited out is relevant to the case is not for the PW2 to decide, the decision is for the trial Court to make. What the Appellant ought to do is present the original copy of the CCTV footage to the Court and the Court would be free to rely on any part it deems relevant. In my opinion, the fact that the footage has been tampered with robs it of probative value and renders it unreliable. See ROCKONOH PROPERTY CO. LTD. V. NITEL (2001) 14 NWLR (PT. 733) 468; OKOKO V. DAKOLO (2006) 14 NWLR (PT. 1000) 401. Note that the tape qualifies as a document under Section 258(1) of the Evidence Act. It is therefore my humble but firm opinion that it is safer not to rely on the contents of the CCTV footage presented to the trial Court as same has been tampered with. 

​The Prosecution has the burden to prove all ingredients of the offence against the accused person beyond reasonable doubt. This burden does not shift. The implication of this is that the Respondent in this appeal has the duty to prove that the Appellant committed the offences with which he was charged. The Respondent by credible evidence must connect the Appellant to the offence. Once all the ingredients of an offence have been proved by the prosecution to the satisfaction of the Court, the charge is said to have been proved beyond reasonable doubt and the guilt of the accused person is pronounced by the learned trial Judge. Indeed Section 138(1) of the Evidence Act requires crimes to be proved beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. If the evidence is so strong against a man and leaves only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice. See UKPONG V. STATE (2019) LPELR–46427 (SC); SALIU V. STATE (2014) LPELR–22998 (SC); MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER 372. 

It is important to also state that the law is trite that the prosecution can discharge the burden of proof beyond reasonable doubt by (a) evidence of an eye–witness who saw the commission of the offence or (b) by voluntary confession of the accused person or (c) by circumstantial evidence. See among the plethora of authorities on this principle of law, STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 AT 416 (D–G) 433 (B–D); TOPE V. STATE (2019) 15 NWLR (PT.1695) 289 AT 300-301 (G-A).

It is imperative to state that the Appellant was arrested at the crime scene after he had picked up the money he requested from PW2 and as a matter of precision, PW1 under cross-examination at page 123 of the record of appeal stated that the Appellant was arrested with a handset with an Etisalat number containing the number of PW2, the complainant. 

​Despite having expunged the evidence contained in the CCTV footage by reason of PW2’s admission to have edited same, the evidence of PW1 fixes the Appellant to the crime scene. The Appellant’s defence of being found while trying to sit on the car under which the money was placed is not far from the evidence of PW1 to the effect that the Appellant was arrested carrying the money which was placed under the same car the Appellant said he was trying to sit on. 

The Appellant contended that there was no evidence linking him to the Etisalat line from which the threatening calls and records were sent to PW2. He also contended that there was no evidence of the Respondent’s phone number in Exhibits U1–U5. Exhibit U1 is the certificate of compliance with Section 84 (2) and (4) of the Evidence Act in respect of the call log and messages printed from the Appellant’s Etisalat number. PW1 in his evidence at page 118 of the record narrated the circumstances under which Exhibits U1–U5 were obtained thus:
“During the course of the investigation when the Defendant wrote his statement, we discovered that he used an Etisalat SIM to send messages to the complainant so we wrote a letter to the Etisalat network requesting that the print out of the text messages he sent to the complainant using an Etisalat which they did and replied us with a print out with the same test messages (sic) sent to the complainant and they accompanied the print out with a certificate to indicate that the test messages (sic) were printed from them.”

The evidence above was not controverted and the trial Court was right to have relied on same. It is therefore clear that after the Appellant was found to have been sending messages to the PW2 via an Etisalat number, enquiries were made on the number and it was confirmed that the messages emanated from the Appellant. The contention of counsel for the Appellant that Exhibits U1–U5 do not indicate the PW2’s number is not borne out of the record of the trial Court. Exhibits U2–U4 clearly shows the number of PW2 as the recipient of the threatening calls and messages sent from the Appellant’s number. I therefore entertain no doubt in my mind that the threatening calls and messages were sent by the Appellant to the PW2. 

​It was also the contention of the Appellant that he neither picked up the carton of money nor reached for the money when he was arrested. Now, the testimony of the PW1 was to the effect that the Appellant had already picked up the money. The Appellant’s counsel had also contended that the testimony of PW1 and PW2 on the circumstances of the Appellant’s arrest are contradictory. However, PW2 viewed the incident via CCTV and the CCTV recording having been declared unreliable, the purported contradiction is no longer an issue. The Appellant having been arrested at the scene of crime and coupled with the fact that he resides in the same estate as PW2, had the opportunity to commit the offences for which he was charged and convicted. Ordinarily, the fact that an accused person was found to have had the opportunity to commit the offence without more cannot ground his conviction or even show that he has a case to answer. See OHUKA V. STATE (NO. 2) (1988) 4 NWLR (PT. 86) 37. The circumstances herein are however different. The testimony of PW1 that he saw the Appellant pick up the money from under the Honda where he instructed that it be dropped together with the contents of the messages sent via the Etisalat number point irresistibly to the fact that he committed the offence. As a matter of fact, PW2 under examination in chief at page 127 lines 17–26, page 127 lines 1–9 and page 128 line 11–15 of the record of appeal as follows:
“I got a text message that there is a Honda motor parked outside my house, that I should put the money under the Honda accord parked outside my house. It is a gold Honda accord. After I got the text, I called my security to find out whether my neighbor Honda was really there but (sic) they park it there sometimes and my security guard confirmed that the car was parked there. That was when I panicked that these people know where I live. I drove myself home and more text messages were coming that if I value my life, I should not tell the police, that they will deal with me and I could not take it any longer so I called a friend of mine, Mr. Shola Oniru. He now came to my house with one mobile police man and one soldier. When they got there, they parked on one side of the street and slowly came to my house. So we proceeded to leave the house. They now escorted myself, my wife, my 2 daughters at the time and my wife friend visiting from London. The 5 of us got into the car and we proceeded to go to Ikeja, my brother house with the escort of Mr Oniru, the mobile police man, his personal assistant and the soldier.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>


One of the soldiers when he got to my house that night was shouting may be to establish his presence, so the text messages said that I went to report to the police or soldier, that it is like I like money more than my life, that I should go and find the money for them.”

The evidence of PW2 was not in any way challenged under cross-examination and this evidence as a matter of fact corroborated the contents of Exhibit U2 wherein the Appellant said in the text message sent to the Respondent that:
“I tell you something scret(sic) you go and call police or army I don’t no (sic) u make me angry yestaday (sic).
Tayo don’t used (sic) me play u (sic) think I don (sic) have money keep my money unda (sic) that Honda car.”

The Appellant being a security man in the house next to that of PW2, either saw the mobile police officer and the soldier brought by PW2’s friend to escort PW2 and his family out of PW2’s house or hear the soldier’s voice when shouting, hence the message sent to PW2 contained in Exhibit U2. 

​I am of the firm view that the unchallenged eye testimony account of PW1, the testimony of PW2, the victim and the credible and cogent circumstantial evidence on the record points irresistibly to the guilt of the Appellant. 

​The trial Court extensively analysed how the ingredients of the offences charged were proved beyond reasonable doubt thus:
“It is therefore clear that the defendant issued the threat and thereby compelled the PW2 to put money under the gold Honda Car in front of the residence of PW2. Defendant was responsible for issuing the threat and that with a guilty mind. PW2 also lived with his family and in fact had to move his family to safety on the night he started receiving the threat and messages. The threat was therefore made not only to the PW2 but his family. The PW2 was not only one of be subjects of the threat, he was vis a vis his family members the 3rd party who was made to do or abstain from doing an act to wit: payment of five million Naira.
It has been contended that the PW2 edited the CCTV footage d to that extent that footage is not reliable and should be construed against the prosecution. It would however seem at the testimony of PW1 has filled that gap. The testimony PW1 on the activities of the defendant on the day of his rest shows that indeed the defendant picked up the carton containing money before he was arrested. That is what the fence wants the Court to believe was edited out. Even without the CCTV footage therefore there is evidence of what happened on the night of defendant’s arrest.
The compelling nature of the testimonies of PW1 and PW2 negates whatever shortcomings there may be as regards the confessional statement. Outside the confessional statement therefore, there is compelling evidence of the defendant’s guilt.
I therefore find the defendant guilty on Count 1.
Count 2 is under Section 24(2)(a) of the Cybercrimes Prevention Act 2015.
It involves the knowing or intentional transmission or the causing of transmission of any communication through a computer system or network to bully, threaten or harass another person where such communication places another person in fear of death, violence or bodily harm or to other person.
The ingredients of this offence overlap with those in Count 1. Indeed, they seem to me to be less tedious than those in Count 1. The communication made by the defendant was by phone which is a transmission via a computer network. Indeed, the print out is a computer generated evidence. There is also no joinder of issues as regards whether or not a telecommunication transmission is a communication made through a computer system or network. Indeed, Section 58 of the Cybercrime Act defines computer system as covering any type of device with data processing capabilities including computers and mobile phones. It also by the same token falls within the definition of network.
Exhibits U1 to U5 are clear evidence of the communication. It has been contended that this exhibit was dumped on the Court. It would however seem that PW1 explained the contents as being the messages sent from the Etisalat line found on defendant from which also the threatening phone calls emanated.
The messages put PW2 and his family in fear of death violence or bodily harm.
There is also evidence of a guilty intention, to wit to commit an unlawful act. 
I therefore also find the defendant guilty as charged as per Count 2.” 
See pages 199–201 of the record of appeal.

On count 3, the Court held at pages 201–202 thus: <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“It is not in issue that the contents of the carton do not belong to the defendant and that by taking it, the defendant intended to permanently deprive the owner of it. The sum is also above the one thousand Naira threshold in Section 390 of the Criminal Code.
It is the position of the defence that the evidence on this point is contradictory. I have however found that it is not. Both PW1 and PW2 testified that the defendant was arrested as he picked the carton containing the money. It cannot be expected that the testimonies of 2 witnesses will tally in all materials particular. So it is in this case. Whatever differences there are in the said testimonies were in my view negligible. The purport of the evidence of PW1 and PW2 on this issue however points in only one direction to wit: the defendant took the carton of money and was arrested in physical possession of same. There is no dispute that defendant took the money and the taking was not for a honest purpose. It was clearly fraudulent. 
I therefore do not hesitate in convicting the defendant on Count 3 also.”

​The above findings of the trial Court are unassailable. On the whole, it is trite that evaluation of evidence and ascription of probative value are the primary functions of the trial Court. An appellate Court will therefore not interfere with findings of facts made by the trial Court except for compelling reasons such as: (a) If the finding is perverse and cannot reasonably be supported having regard to the evidence or (b) If the finding is an interference from established facts so that an Appellate Court is in as vantage a position as the trial Court to draw its own conclusions or (c) If the trial Court has applied wrong principles of law or (d) When the decision of the trial Court has occasioned a miscarriage of justice. See UBN PLC V. CHIMAEZE (2006) LPELR–11747 (CA); EFFIONG V. IKPEME & ORS (1999) LPELR–6675 (CA); NOMANY V. FRN (2018) LPELR–44546 (CA).

​Despite having expunged the Appellant’s confessional statement and the CCTV evidence admitted by the trial Court, the Appellant having not successfully dislodged the other credible evidence on the record, has not demonstrated why the judgment of the trial Court ought to be set aside and unassailable findings contained therein interfered with. The law is trite that it is not every mistake or omission by a trial Court that will result in setting aside of its decision. The concern of the Appellate Court is whether on the totality of admissible oral and documentary evidence on record, the judgment of the trial Court is sound and justified in the circumstance. In the case of BALA V. THE STATE (2019) LPELR–48945 (SC), my Lord of the Apex Court, Peter-Odili JSC, held as follows:
“…On this point, I would want to place on record that it is not every error by a lower Court that would automatically lead to the vitiation of the judgment or decision of that Court. In this, I have recourse to earlier decisions of this Court for support. In Azabada v State (2014) 58 (pt.1) NSCQR 531, this Court held that: “It is not every error committed by a lower Court that would result in the decision being set aside by an appellate Court. For an error to qualify as one that will inevitably lead to the setting aside of the decision/judgment, it must be substantial in nature, and must have resulted in a miscarriage of justice to the appellant.” This Court went on to say that: “where the error complained of is substantial and is likely to lead to a miscarriage of justice or has resulted in injustice, an appellate Court will be eager to set aside the decision. However, where the error is not substantial or has in no way resulted in a miscarriage of justice to the appellant, as in the instant case, the Court will not set aside the decision because to do so will rather result in injustice to the respondent representing the society at law.” 

In my final analysis, I hereby hold that the Respondent proved the guilt of the Appellant beyond reasonable doubt. On the whole, the judgment of the trial Court is hereby affirmed. The conviction and sentence of the Appellant by the learned trial Judge for the offences charged is hereby affirmed. The appeal is dismissed for lacking in merit.

​OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother ABUBAKAR SADIQ UMAR, JCA and I agree with his reasoning and conclusions therein. Indeed the available eye witness and circumstantial evidence before the lower Court prove beyond reasonable doubt that the Appellant was also at the locus criminis. I therefore agree with my learned brother that the appeal lacks merit. It is also dismissed by me. Consequently, the conviction and sentence of the Appellant by the lower Court are also affirmed by me.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: Before now, I had the opportunity to study the draft copy of the judgment just read by my learned brother, ABUBAKAR SADIQ UMAR, JCA. Based on the convincing analysis and the logical conclusion drawn by my brother therein, I agree with the decision made and adopt same as mine. 
I also abide by the Order(s) made.

Appearances:

U.C. UKEGBULE For Appellant(s)

ONYEKA CHINWE ANIGBOGU For Respondent(s)