Adeyinka Ajiboye V. Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This is an appeal against the judgment of Court of Appeal, Ilorin division (Coram- Chidi Nwaoma Uwa, Uchechukwu Onyemenam and Musa Hassan Alkali, [of blessed memory) JCA hereinafter referred to as the lower Court or below) delivered on 18th December, 2014, wherein the learned justices of the lower Court which affirmed the decision of the Kwara State High Court (the trial Court) delivered by Abdul Gafar J. on 11th February, 2014.

The appellant herein, was arraigned before the trial Court on four count charge as set out below:

COUNT 1

That you Adeyinka Ajiboye, between September 2008 and July 2009 at llorin within the jurisdiction of this Honourable Court, being an Automated Teller Machine Custodian of Guaranty Trust Bank committed theft in the sum of N46,201,100 (Forty six million, two hundred and one thousand, one hundred Naira) in the possession of the Guaranty Trust Bank and thereby committed an offence punishable under Section 289 of the Penal Code.

COUNT 2

That you ADEYINKA AJIBOYE between September 2008 and July 2009, at llorin, within the jurisdiction of

1

this Honourable Court being an Automated Teller Machine custodian in the employment of Guaranty Trust Bank, committed theft by stealing property to wit the sum of N25,000,000.00 (Twenty five million Naira) in the possession of the Guaranty Trust Bank and thereby committed an offence punishable under Section 289 of the Penal Code.

COUNT 3

That you ADEYINKA AJIBOYE, between September, 2008 and July 2009 at Ilorin within the jurisdiction of this Honourable Court, being a servant in the employment of Guaranty Trust Bank and in such capacity entrusted with the sum of N46,201,100.00 [Forty Six million, two hundred and one thousand, one hundred Naira) being part of the sum to be loaded in the Automated Teller Machine (ATM) committed criminal breach of trust in respect of the said sum and thereby committed an offence punishable under Section 314 of the Penal Code.

COUNT NO.4

That you ADEYINKA AJIBOYE between September 2008 and July 2009 at Ilorin within the jurisdiction of the Honourable Court being a servant in the employment of Guaranty Trust Bank and in such capacity entrusted with the sum of N25,000,000.00(Twenty five million

2

Naira only) being part of the sum to be loaded in the Automated Teller Machine (ATM), committed criminal breach of trust in respect of the said sum and thereby committed an offence punishable under Section 314 of the Penal Code”.

Upon arraignment, each of the four counts was read and explained to the accused/appellant by the trial Court and he denied committing each of them. Trial thereupon proceeded in earnest. In an effort to prove its case against the appellant, the prosecution, now respondent, called seven witnesses and tendered several exhibits which included voluntary confessional statements made by the appellant which were admitted in evidence after a trial within trial. On his part, the appellant testified for his defence without calling any witness. After the close of the defence case, learned counsel for the parties addressed the trial Court which later adjourned the case for judgment. In the end, the trial Court in its judgment found that the prosecution/respondent had proved its case beyond reasonable doubt and convicted the appellant in the following term and also made forfeiture order as follows:

“Consequently, I order that the accused pay

3

compensation to GTbank Plc on the sum of N21 million which he admitted to have filched from the bank, less than amount of N15 million that PW7 said was recovered. The accused shall pay the sum of N10,000,000 to GTbank Plc.

I also exercise the power under Sections 19 & 20 of EFCC Act to order the forfeiture to GTbank Plc property admittedly built by the accused from the proceeds (sic) of the fraud.

.I hereby sentence the accused to a term of 3years without option of fine in respect of count 2 while I sentence him to a term of 3years in respect of Count 4 both terms to run concurrently.”

The appellant herein, became miffed by the judgment of the trial Court and he thereupon appealed to the Court below vide a notice of appeal dated and filed on 5th March, 2014 which contains seven grounds of appeal. Out of the seven grounds of appeal, the appellant decoded four issues of determination which read as below:

(1) Whether the learned justices of the Court of Appeal were right in their failure to express the reasoning for affirming the judgment of the learned trial judge (Ground 3).

(2) Whether the Appellant’s property is liable to be

4

forfeited despite the term of sentences and payment of compensation orders made against him (Ground 4).

(3) Whether the Court of Appeal was right in affirming the decision of the trial Court admitting the statement credited to the Appellant as his confessional statement worthy of being relied upon in convicting the appellant. (Ground 2)

(4) Whether in view of the circumstances of this case, the appellant’s conviction was rightly affirmed by the Court of Appeal (Grounds one & five).

It needs to be stated that the appellant also filed Appellant Reply brief on 23/2/2018 which was deemed filed on 28/2/2018.

On its part, the respondent filed its brief on 15/2/2018, deemed filed on 28/2/2018 which was settled by Rotimi Oyedepo Iseoluwa. In the said brief of argument it also encapsulated four issues for determination which are reproduced hereunder:

A. Whether having regards to the evidence adduced by the respondent before the trial Court, it can not be said that the respondent proved its case against the appellant beyond reasonable doubt to justify the judgment of the Court of Appeal affirming the conviction of the appellant.

5

Whether the judgment of the Court of Appeal is liable to be set aside by this Honourable Court on the ground that the Court of Appeal failed to give reason for affirming the judgment of the learned trial judge.

C. Whether having regards to the evidence adduced by the prosecution before the trial Court, it can be said that Court of Appeal erred in law in agreeing with the learned trial judge that the appellant volunteered his extra-judicial statement voluntarily.

D. Whether the Order of Restitution made by the learned trial Court and upheld by the Court of Appeal was not properly made so as to enable this Honourable Court declare same null and void.”Closely looking at the two set of issues for determination raised by the learned counsel for the parties, I am convinced that the issues encapsulated in the appellant’s brief of argument have adequately subsumed all the issues raised in the respondent’s brief of argument. As elegantly couched as they are, I choose to be guided by the issues raised by the appellant in determining this appeal and in doing so I shall consider them seriatim, of course, after summarising the submissions of learned counsel on each of them.

6

SUBMISSION OF COUNSEL ON ISSUES FOR DETERMINATION

ISSUE NO.1:- This issue deals with alleged failure of the Court below to give reasons in affirming the judgment of the trial Court.

The learned counsel to the appellant argued that there was no appraisal of the case before the Court below and that the Court of Appeal merely restated arguments of both counsel and the position of the trial Court without giving its input or reasons for agreeing with the position of the trial Court. He cited the case of CHIEF GREAT OGBORU & ANOR v EMMANUEL UDUAGHAN & 2 ORS (2012) 2-3 SC 66 at 92-94 lines 30-32.

He submitted that the judgment of the Court below occasioned a miscarriage of justice, in that the basic rule of law that a judgment must have reasons for the judge’s conclusion in the judgment was not complied with. He then urged the Court to resolve the issue in favour of the appellant.

ISSUE NO.2

This issue queries whether the appellant’s property was still liable to be forfeited despite the term of sentence and order for payment of compensation.

The learned counsel to the appellant argued that the

7

learned trial judge had no power under Sections 19 and 20 of the EFCC Act, to forfeit the appellant’s property to GTBank Plc, when the appellant has been sentenced to a term of imprisonment and was equally ordered to pay compensation to GTBank. He quoted the provision of Sections 19 & 20 of the EFCC Act and submitted that there is no power conferred on the trial Court to forfeit the property of the appellant to any person or body. He contended that for the trial judge to exercise the power of forfeiture under these sections, the appellant must have been charged under the EFCC Act which is not the case here as the appellant was charged under the Penal Code. He submitted further, that it would amount to double jeopardy having convicted the appellant and having ordered the payment of compensation to GTBank Plc in the sum of N25,000,000.00 which he admitted to have taken from the Bank. He urged the Court to resolved this issue in favour of the appellant.

ISSUE NO.3

This issue relates to whether the Court below was right in affirming the decision of the trial Court admitting the statements credited to the appellant as his confessional statements and worthy of being relied

8

upon in convicting the appellant.

He submitted that Exhibits. P5 and P21 being purported confessional statements of the appellant are not legal evidence as they are neither admissible nor worthy of being relied upon in convicting the appellant. He argued that the statements were wrongly admitted, notwithstanding, the conduct of trial within trial to determine the voluntariness of the said statements.

In respect of the 1st trial within trial, he referred to the cross examination of PW2 at pages 170 and 171 of the record and argued that DSP Ronke Oyeleyin, the superior police officer before whom the appellant was said to have been taken, ought to have been called as a witness at the trial within trial. He therefore submitted that failure of the prosecution to call the said superior police officer as a witness, is fatal to the prosecution’s case and thereby renders the purported statements inadmissible and cannot be used against the appellant. He also argued that the appellant was not obliged the opportunity of exercising his right of the presence of his counsel, despite a demand for it. He referred to the judgment of the trial Court at page 183 of the record

9

and argued that right to a counsel is a constitutional right and failure to allow the appellant access to his lawyer before recording his statement is not a matter to be treated with levity.

On Exhibit P21, he submitted that the second statement was wrongly admitted. He referred to the re-examination of PW2 at page 193 of the record and submitted that requesting the appellant to write the statement contradicts the fact that he wrote the statement voluntarily as the statement requested from an accused can never be said to be voluntary. He cited the case of THE STATE v MATI AUDU (1971) NNLR 91 @ 92 where it was held that statement made by an accused on demand cannot be said to have been made voluntarily. He argued that the confessional statements of the appellant did not pass the test of admissibility i.e

(1) whether it is corroborated

(2) whether there is anything outside the confession to show that it is true.

(3) whether the confession is possible e.t.c.

Learned appellant’s counsel argued that one HAKEEM ADEFIOYE who was said to be the appellant’s supervisor and who suspected the appellant of suppressing funds

10

meant for ATM; was never called as a witness to corroborate the facts of commission of the offence. He urged the Court to expunge the confessional statements from the record and to resolve the issue in favour of the appellant.

ISSUE NO.4

Issue no.4 relates to whether in view of the circumstance of this case, the appellant’s conviction was rightly affirmed by the Court below. On this issue, the learned counsel for the appellant argued that from the evidence of the prosecution’s witnesses and that of the appellant, the appellant was not the only ATM custodian in the GTBank, GRA branch, Ilorin and that since other custodians have not been accused of stealing cash meant for ATM, the appellant also should not have been accused, since what is good for the goose is also good for the gander. He submitted that the basis of suspicion has collapsed with the evidence on record to the effect that other staff of the GTBank also have access to the vault and feed the ATM. He submitted that from the totality of evidence on record, the respondent failed woefully to prove the offences alleged against the appellant. He then urged the Court to resolve this issue in favour of the appellant

11

and to allow this appeal.

RESPONDENT COUNSEL’S SUBMISSION

In response to the argument of the appellant’s counsel, the learned to the respondent as I stated earlier also submitted four issues for the determination of this appeal.

ISSUE NO.A

Issue no.A questions whether the respondent had proved its case against the appellant beyond reasonable doubt having regard to the evidence on record.

The learned counsel to the respondent submitted that it has placed enough evidence before the trial Court and the Court below to show that the appellant was in the employment of the Bank and that he was in charge of ATM when the alleged offences were committed. He referred to Exhibit P5 at page 30 of the record and submitted that since facts admitted need no further proof, the respondent had discharged the burden of proof placed on it by law. He argued that it was in evidence before the trial Court, that the consent of the bank was not sought and obtained to enable the appellant move the sum of N25,000,000 and that has been demonstrated through Exhibit P1 which is the petition to the EFCC and the evidence of all the prosecution witnesses. He argued

12

further, that the respondent has been able to prove various fraudulent intentions of the appellant to cause wrongfully gain to himself or wrongful loss to the bank by removing money meant for the ATM and surreptiously keeping same in his car which he eventually lodged in his account and those of his relations i.e. the wife, daughter and sisters accounts. He referred to Exhibits P2, P3 and P4 and argued that the total cumulative difference of over N46,000,000 were outstanding which the PW1 to PW7 had testified not to have being occasioned by system -error, but due to suppression of ATM cash. He cited the case of Onogwu v State(1995) 6 NWLR (pt.401)276 at 291.

He submitted further that in view of the admission of the appellant as contained in Exhibits P5 and P21, the learned trial judge is justified to have convicted the appellant. He referred to the judgment of the trial Court at pages 280-281 and submitted that it is the duty of the trial Court or tribunal to see, hear and assess each witness as to whether he should believe him or not and that where the trial Court has discharged that responsibility, the appellate Court will

13

not interfere with such findings of the trial Court, unless they are shown to be perverse or unsupported by evidence. He then urged the Court to resolve this issue in favour of the respondent.

ISSUE NO.B

Issue no.B relates to whether the judgment of the Court below is liable to be set aside on the ground of failure to give reasons for affirming the judgment of the trial Court. The learned counsel to the respondent submitted that once the appellate Court affirms the decision/findings of the trial Court, the reason or findings of the trial Court is deemed to have been the reasoning of the Court of Appeal, He referred to pages 392-420 of the record and submitted that the Court of Appeal is on perfect pedestal in affirming the findings of the learned trial judge. He urged the Court to resolve this issue in favour of the respondent.

ISSUE NO.C

This issue deals with whether having regard to the evidence adduced by the prosecution, it cannot be said that the appellant volunteered his extra judicial statements. He argued that the respondent herein, proved its case in the trial within trial before the trial Court, to justify admitting Exhibits

14

P5 and P21. He submitted that the recording of the statements of the appellant conforms with the formal requirement for recording of the statements of the appellant. It also conforms with the formal requirement for recording of the extra judicial statements. He contended further, that failure to call DSP Ronke Oyeleyin, the superior police officer before whom the appellant confirmed that he volunteered his statement is not fatal to the prosecution’s case at the trial within trial as the evidence of the investigating police officer who cautioned and obtained the statements of the appellant has confirmed that. He submitted that the practice of taking an accused person along with his confessional statement to a superior police officer who will read over and interprete same to him, is not a requirement of law and failure to comply with such practice will not render a confessional statement inadmissible. He cited the case of DIBIE v THE STATE (2007)9 NWLR (pt.1038).

It was also submitted that the prosecution is not mandated to call all its listed witnesses but only material witnesses. See ATTAH v STATE [2009)15 NWLR (pt.1164) pg 284 at 304. He therefore submitted that there was nothing

15

material that DSP Ronke Oyeleyin if called, would have denied the role she played in her evidence. He cited the case of EDOHO v STATE (2004) 5 NWLR (pt.865) pg 17 at 51. In addition, the learned counsel urged the Court to hold that the respondent proved beyond reasonable doubt that the appellant volunteered Exhibits P5 & P21 in view of the evidence adduced by the prosecution’s witness in trial within trial.

ISSUE NO.D

This issue deals with whether the order of restitution made by the trial Court was not properly made.

He submitted that by the combined provisions of Section 78 of the Penal Code and Section 365 of the Criminal Procedure Code, the learned trial judge had the requisite jurisdiction and power to order restitution to the victim of crime and that no limit has been set on the amount that a trial judge upon conviction, can award to the victim of the crime by way of compensation. He cited the case of MARTINS v COP (2013) 4 NWLR [pt.1343) page 25 at 47 paragraph F-GG.

On the contention of the appellant that the trial Court exercised the power of restitution under a wrong law by relying on Sections 19 & 20 of the EFCC Act 2004, he

16

submitted that a valid order made by a competent Court of law does not become invalid, simply because it was made under a wrong law. He referred to the case of HENRY STEPHEN ENGINEERING CO. LTD v COMPLETE HOMES ENTERPRISES NIG. LTD (1987) All NLR pg 28 at 37. Since the appellant had acquired the property with the proceeds of the crime for which he was convicted, the trial Court also has the power under the provision of Section 20(1) (b) of the EFCC Act, to order the forfeiture of the said property to the Federal Government of Nigeria. He argued that the provision of Section 7 of the EFCC Act, 2004, empowers the EFCC to investigate and prosecute economic and financial crimes under the existing legislation such as the Penal Code as in this instant case, and to that extent, the EFCC Act is clearly applicable to this appeal and the order of forfeiture of the appellant’s property will not amount to double jeopardy since it is liable to be forfeited under Section 20 of the EFCC Act. He cited the cases of ONWUDIWE v FRN (2006) 10 NWLR (pt.988) 382 at 411 -412, 420 & 425 and EGUNJOBI V FRN (2002) FWLR {pt. 103) 896-923.

He contended that even if the property cannot be forfeited to

17

the victim of the offence, it cannot be said that the Court lacks the jurisdiction to order forfeiture of same to the Federal Government as stipulated in Section 20 of the EFCC Act, 2004. He therefore urged the Court to uphold the order of the trial Court, or in the alternative, to vary the order by directing the property to be forfeited to the Federal Government so as to prevent the appellant benefiting from the procedes of the crimes for which he was rightly convicted.

On the whole, he urged this Court to dismiss the appeal.

REPLY BRIEF OF THE APPELLANT

The Reply of the appellant revolves around the issue of facts. He also argued on the issue of contradiction in the evidence of PW1, PW3 and PW4 on how the money was taken from the appellant’s accounts which issue did not arise from the issue or issues formulated and considered at the Court below. In other words, it is too late in the day for the appellant to introduce a new issue at this stage.

The reply brief also contains re-argument of issues that had already been argued in the appellant’s main brief and is fine-tuning of earlier submissions. This Reply

18

brief according to the respondent’s counsel serves no useful purpose as it has carried more than what is contemplated within the meaning of a Reply brief. It does not deserve countenance.

RESOLUTION OF ISSUES FOR DETERMINATION

ISSUE NO.1

As I posited supra, this issue relates to the alleged failure by the Court below to express its reasons for affirming the decision of the trial High Court in the judgment now appealed against. The complaint of the appellant’s learned counsel is that the Court below failed to appraise the appeal and also did not give its reason for its resolution of the issues. He added that the lower Court merely resolved the issues by quoting the passages in the trial Court’s findings.

It is noteworthy that the appellant in his appeal before the lower Court raised four issues for determination. Admittedly, the lower Court in its judgment quoted verbatim the submissions of the learned counsel to the parties and followed same with the findings of the trial Court on each of the issues and afterwords it (the lower Court) considered the submissions of learned counsel to the parties. The lower Court in its approach virtually repeated and quoted all the

19

submissions of the learned counsel word by word and reproduced the findings of the trial Court on each of them.

I have closely perused the judgment of the lower Court now appealed against. My view is that it will not be very correct to say that the lower Court merely resolved the issues without appraising them or without giving reasons for its resolution in all the issues raised before it. To my mind, what the lower Court did by quoting the findings of the trial Court was that it had approved same or more or less adopted or endorsed same as its own, even though it did not expressly state so. For instance, on issue No.1 before the lower Court which raised the issue of proof of the offence the appellant was charged with, the Court below in its conclusion or resolution of that issue stated at page 394 of the record as follows:

“It is from my view that the prosecution has successfully discharged the burden placed on it by proving all the essential elements of the offences preferred against the appellant beyond reasonable doubt. I therefore rest resolution in favour of the respondent against the appellant.”

On Issue No.2 before the lower Court, the Court did not

20

however make any finding but merely stated that it resolved that issue in favour of the respondent after it extensively quoted almost verbatim, all the submissions by learned counsel to the parties at the trial Court and the findings and conclusion arrived at by the trial Court that the issue related to the admissibility of the extra judicial statement made by the appellant. On the third issue dealing with the order of forfeiture or compensation made by the trial Court, the lower Court in treating the issue also adopted the same procedure as done in the first and second issues supra. However in treating this issue the Court below unlike what it did on issue No.2 supra, it can be said that it really appraised or evaluated the submission when it stated at pages 410 to 411 as below:-

“It is noted that the appellant’s major contention was that the learned trial judge exercised the power of restitution under a wrong Law by relying on Sections 19 and 20 of the EFCC Act, 2004. The answer to that is the learned trial judge was right to forfeit as stipulated under Section 20(1) (b) of the EFCC Act, 2004. Section 78 of the Penal Code reads thus:

21

“Any person who is convicted of an offence under this Penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment”.

Based on the above, the learned trial judge was right in relying on Sections 19 and 20 (1) (b) of the EFCC Act to order the forfeiture of the properties to Guaranty Trust Bank Plc having ordered him to pay compensation to GTBank Plc. Also Section 78 of the Penal Code to cure the whole defect of the proceeds (sic) of the crime.

Issue three is here by resolved in favour of the respondent against the appellant.”

To my mind, the above represents the appraisal and views of the lower Court on the third issue as opposed to the appellant’s counsel’s grouse that the lower Court did not give reasons for resolution of the said issue.

With regard to the fourth and last issue for determination raised before the lower Court dealing with evaluation of evidence by the trial Court the Court below also adopted the same procedure it earlier applied in its treatment of the other previous issues. Hence the lower Court extensively quoted

22

the findings of the trial Court after capturing the submissions of learned counsel. By way of conclusion, it stated that it upheld the judgment of the trial judge and it went further to say that it supported it with the principles in the case of Fatai Vs State (2013) 10 NWLR (pt.1361) 4 and after quoting the principles it relied on extensively, it finally stated that based on the said reasons, it resolved the issue in respondent’s favour. It is my view that the lower Court also based its reasoning on the case of Fatai V State (supra) and that is, to my mind, an adequate appraisal of the submission made by the counsel to the parties before it (lower Court).

Having posited above, it needs to be stressed that judgment writing is an art of itself and there could be numerous ways or methods of writing judgment. The methods normally adopted by judges may vary from one judge to another. The variation could be as many as there are numerous judges and each may have or may adopt the method he wishes to adopt. There is really no particular style approved for judges to adopt in judgment writing since as I stated supra, judgment writing is an art of itself as such there

23

can be multiplicity of ways or method of writing it. See Garuba v Yahaya (2007) 3 NWLR [pt.1021) 390; Mbani v Bosi & Ors (2006)11 NWLR (pt.991)800. In fact this Court in the case of Alfred Usiobaifo & Anor Vs Christopher Usiobaifo & Anor (2005)1 SC 60 the Court had this to say per Niki Tobi JSC (of blessed memory).

“Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in field of mathematics. A judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief argument of counsel, if counsel are in the matter, reactions of the judge to the arguments and final order, an appellate Court can not hold that the judgment is not properly written.”

In this instant case I have stated supra, that the learned justice of the Court of Appeal who wrote the lead judgment had in the said judgment summarised the submissions of the learned counsel for the parties and also relied on or endorsed the findings of the trial Court and adopted or

24

endorsed them before resolving the issues as highlighted above. That in my view, could be his own style, approach, or method of writing judgment. In any case, he had considered all the issues raised and resolved them and had drawn conclusions or general inference before resolving those issues in favour of the respondent. I am unable to say that by the approach adopted by the learned justice of the penultimate Court who wrote the judgment had by the said judgment caused miscarriage of justice on the appellant which could be said to have vitiated the judgment in question. See David Omotola & Ors v The State (2009) 2-3 SC 7 or (2009)7 NWLR [pt.1139)148. I shall add that, since the lower Court in its judgment now appealed against, had endorsed or affirmed the findings of the trial Court, such findings in my view can be deemed to be the findings of the lower Court since it adopted the judgment of the trial Court. For these reasons I shall resolve this issue against the appellant.

ISSUE NO.2

This issue relates to the propriety of the order for forfeiture by the trial Court which was endorsed or affirmed by the lower Court. In the fore paragraph of this judgment, I reproduced

25

the trial Court’s order for forfeiture at the end of its judgment wherein, the trial Court stated thus:

“I also exercise the power under Section 19 and 20 of EFCC Act to order the forfeiture to GTBank Plc the property admittedly built by the accused from the proceeds (sic) of the fraud…”

It is the contention of the learned appellant’s counsel that the trial judge had no power to exercise such power under Sections 19 and 20 of EFCC Act. The further contention or grouse of the appellant’s counsel was where the lower Court stated in its judgment “that the contention was that the trial judge exercised the power of restitution under a wrong law by relying onSections 19 and20 of the EFCC Act 2004”. I must say, that there is no gain saying that the trial Court in its judgment relied on Sections 19 and 20 of the EFCC Act of 2004in giving its forfeiture order. The important thing is whether such order for forfeiture made was grantable in accordance with any law. This is so because a Court order can not be vitiated or does not become null and void simply because the Court relied on a wrong law in making.

26

Such order is valid provided that there is any law that backs the grant of such order. As the appellant was tried at the trial Court for committing an offence or offences under the Penal Code and the same penal code by its Section 78 and also by Section 365 of the Criminal Procedure Code, gives a trial Court power to make order of forfeiture or compensation to any party after convicting an accused person such forfeiture order remains valid. In Martins v COP (2013) 4 NWLR (pt.1343) 25 Mahmud Mohammed JSC [as he then was) had this to say on Page 47:-

“what is significant is that under either Section 78 of the Penal Code which Provides specifically for compensation arising from the conviction for offences and the Penal Code and so applicable to the instant case, or under Section 365 (1) (b) which is general provision in respect of all convictions under any law no limit has been set as to the amount the Court, on convicting the offender can award the victim of the offence by way of compensation.

See also Mafa v State (2013) 3 NWLR (pt.1342) 607 at 622/623.

It is therefore my considered view, that the lower Court was correct in endorsing or affirming the trial Court’s order of

27

forfeiture/compensation as it had such power both under Section 78 of the Penal Code and Section 365 of the Criminal Procedure Code, notwithstanding that it stated that it granted such order under Sections 19 and 20 of EFCC Act 2004. That will not vitiate the order or render the order null and void. This issue is also resolved against the appellant herein.

ISSUE NO.3

On this issue the appellant queries whether the lower Court was right in affirming the decision of the trial Court admitting the extra judicial statement of the accused/appellant. It needs to be stated here, that during the proceedings, the prosecution/respondent sought to tender the confessional statements of the accused/appellant but the defence objected to its admissibility on the ground that it was not made voluntarily by the appellant as he was tortured before he made them. The trial Court thereupon, ordered that a trial within trial be conducted. At the mini-trial, the IPO who recorded the statements testified for the prosecution denying that any torture was meted on the accused and stressed that the latter made it voluntarily. On his part, the appellant

28

testified in the mini trial even though in his testimony he delved into mere irrelevancies without clearly addressing the issue of the type of torture he alleged was meted on him. In its considered ruling, the trial Court found that the accused made the statement voluntarily and admitted them in evidence.

Basically, the grouse of the learned appellant’s counsel are three folds, namely:

(a) That the statement Exhibits P5 and P27 were not made voluntarily

(b) That he made the statements in the absence of his counsel

(c) That the statements were written on demand.

Another complaint of the appellant is that one Ronke Oyeneyin who was the SPO who endorsed the statement in question was not called to testify at the trial within trial.

It needs to be restated here, that the law is well settled that a free and voluntary confession of guilt by an accused be it judicial or extra judicial if direct, and positive and properly proved, is sufficient to ground a conviction once the trial Court is satisfied with its truth. See Odeh v Federal Republic of Nigeria (2008) 3-4 SC 147; Silas Ikpo vs The State (1995)33 LRCN 587; Akinmoju v The State (2000) NSCQR vol.2 (pt.1) 90 at 93.

29

The burden is always on the prosecution to prove that a statement was made voluntarily. In this instant case, the trial Court after the trial within trial found that the statement was voluntarily made by the accused/appellant.

On the issue of endorsement of the said statement by an SPO, it needs to be emphasised here, that the practice of having an SPO to verify and confirm that a confessional statement of an accused was voluntarily given, does not have the force of law. It is merely a desirable practice, therefore any confessional statement which was not so verified should not of necessary without more, be viewed with any air of suspicion. In other words, the fact that an SPO was not called to testify as in this instant case [which even the reason for her absence was given) will not affect the admissibility or credibility of the endorsement of Exhibits P5 and P21. See the case of Dibie v State (2007) 2 NSCQR 1431.

In any case, it is even not the law that the prosecution must call host of witnesses to establish its case. All it is required to do is to call witnesses who are material and would assist it in proving its case.

30

The appellant in this case had confirmed that he was taken to Ronke Oyeneyin’s office who endorsed the statement after same was read over to him before he signed it. The prosecution had in this case given reason that she was not called to testify because she was away abroad. On the alleged absence of his counsel when it was recorded, I think that reason is not cogent as it is not incumbent upon the prosecution to record an accused statement only in the presence of his defence counsel. The important and essential thing is that words of caution must be administered to the accused person to his understanding and to endorse same before he decides to make the statement. Evidence abounds that the words of caution were duly administered in the exhibits before they were duly signed. It is also noted by me, that the second confessional statement Exhibit 21, was made by the appellant to his employers. Same was also recorded under words of caution and it was also subjected to a trial within trial, conducted by the trial Court before it was admitted in evidence by the trial Court which later found that it was also voluntarily made by the accused/appellant.

31

Finally, it is my view that both confessional statements were admitted after the proper procedure was followed. I have no reason to depart from the lower Court’s view affirming the admissibility of the said statements which I also consider as direct and positive. The trial Court therefore rightly relied and acted on them. This issue is again resolved against the appellant.

ISSUE NO.4

The fourth issue for determination raises the question whether, given the circumstances of this case, the lower or court below was correct in affirming the conviction of the appellant by the learned trial judge.

It is clear from the record of appeal that the learned trial judge convicted the appellant of the second and fourth counts namely theft of the sum of N25,000,000.00 said money was owned by the Guaranty Trust Bank Plc, contrary to Section 286 of Penal Code punishable under Section 289 of the Penal Code and count No.4 namely, the offence of Criminal breach of trust by a clerk or servant contrary to Section 311 of the Penal Code punishable under 314 and sentenced him to three years imprisonment on each of the two counts. The trial Court however found

32

that the prosecution failed to prove the first and third counts and thereby acquited him on each of them.

The question posed by this issue is whether the offences in counts two and four were proved beyond reasonable doubt by the prosecution to warrant the conviction by the trial Court and the subsequent affirmation of the conviction on each of them by the Court below. The stance of the learned counsel for the appellant is that those offences were not proved by the prosecution against the accused/appellant for the reasons he gave in his brief of argument as summarised supra.

On the first count of theft by a clerk or servant contrary to Section 289 of the Penal Code, the prosecution in order to secure a conviction must prove the underlisted ingredients of the offence, namely:

(a) That the time of the commission of the offence the accused is a clerk or servant and was employed in that capacity by a person in whose possession the stolen property was.

(b) That the property was a movable one.

(c) The property was in possession of the employer

(d) That the accused moved the property whilst in the possession of that employer.

33

(e) That he did so without the consent of the employer

(f) That he did so in order to take the property out of the possession of the employer

(g) That he did so with intent to cause wrongful gain to himself or wrongful loss to the employer.

On the first ingredient supra, evidence abound that as at the time of the commission of the offence, the appellant was under the employment of the complainant bank the Guaranty Trust Bank Plc, which no doubt, was in possession or is the owner of the sum of money he was alleged to have stolen. In his voluntary confessional statement the appellant stated that he worked with Trade Bank before he moved to Guaranty Trust Bank in 2006 in Lagos before being transferred to Ilorin. As regards the second ingredient, it can not be disputed that the amount stolen was certainly a movable property. Also on the third ingredient that the property must be in possession of the employer. The testimonies of PW1, PW4, PW5, PW6 and PW7 had revealed the procedure of operation of Automated Teller Machine (ATM) and on how money could be taken from the vault of the bank. Their testimonies had established that the money stolen i.e

34

N25,000,000.00, which was owned by the GTBank, the accused person’s employer. With regard to the 4th and 7th ingredients, ample evidence was led by the prosecution in proof of how the accused stole the property from the ATM machine and the accused in his confessional statement, had clearly exonerated PW4, PW5, PW6 and PW7 who at one time or another relieved him from his duty when he categorically stated that they were not involved in the theft.

As for the sixth ingredient, namely whether he was responsible for the theft of the money, adequate evidence was led to show that the appellant did steal the sum of money and used the theft proceeds to buy various movable and immovable properties some of which were traced and recovered. Regarding the seventh element of the offence, the attitude of the appellant clearly revealed his fraudulent and guilty intention of causing wrongful loss to his employer, and to cause wrongful gain to himself. Also there is no doubt that all these acts were done without the consent of the employer.

It is my considered view therefore, that the prosecution advanced adequate evidence in proof of the allegation of

35

of theft against the accused/appellant which said evidence were neither debunked nor controverted. The accused failed to debunk such evidence or explain that he was not culpable. The trial Court was therefore correct in convicting the accused/appellant of the offence of theft contrary to Section 289 of the Penal Code and was correctly convicted as charged. The Court below can also not be faulted for affirming the conviction and sentence of the appellant by the trial Court.

The fourth count against the appellant was one for the offence of criminal breach of trust by a clerk or servant contrary to Section 314 of the Penal Code punishable under the same section. Section 314 of the Penal Code reads thus:

Section 314 of Penal Code states thus:

“Whoever being a clerk or servant or employed as a clerk or servant and being in any manner entrusted in such capacity with property or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine.”

From the wordings of the above provisions, the elements that must be proved by the prosecution in

36

order to obtain conviction are as follows:

(i) That the accused is a clerk or a servant

(ii) That in such capacity he was entrusted with the property in question or dominion over it.

(iii) That he committed criminal breach of trust in respect of such property.

See Onogwu v State (1995)6 NWLR (pt.401)276 at 291.

I must say, that in proof of the first ingredient supra, the prosecution witnesses nos.1 to 7 clearly testified that the appellant was a servant of the Guaranty Trust Bank Plc, (the complainant) as at the time material to this case. Their testimonies in that regard, were never challenged. Also the appellant testified at the trial Court in that regard too. As regards the second ingredient of entrustment, evidence abounds that in his capacity as the bank’s servant, the appellant was entrusted with the custody of the Automated Teller Machine [ATM) and had, as part of his duty, been entrusted with cash to fill the ATM machine on week days and weekends. Evidence was also adduced that the cash loaded in the machine were filfered without the consent of the employer. The appellant in his statement Exhibit 5

37

attested to or confirmed that piece of evidence when he admitted, inter alia, that during week days he took part of the cash unloaded from the machine and deposited them into his sister’s and wife’s accounts.

All these pieces of evidence led by the prosecution/respondent were not controverted or challenged. The confessional statements of the appellant were adequately corroborated by the testimonies of the prosecution witnesses. Other corroborative evidence to the confessional statements also include the properties purchased with procedes of the stolen money, as well as the money traced to the accounts of the appellant and of his siblings. In the light of the above, I am fully convinced that the two offences were duly proved by the prosecution/respondent against the appellant beyond reasonable doubt. The trial Court therefore rightly convicted the appellant of the said offences. On its part, the lower Court was also correct or faultless, when it affirmed the conviction and sentence of the appellant of the offences charged. This last issue is therefore hereby resolved against the appellant.

It is also pertinent to state that in

38

this case there are concurrent findings of both the trial and lower Courts. This Court is always hesitant in interfering with or tampering with concurrent findings of two lower Courts, except on special or exceptional circumstances such as where the findings are perverse or where there is misconception of facts or misapplication of law. None of these exist in the instant case, hence I have no cause to interfere or tamper with them.

In the result, having resolved all the issues raised and canvassed in this appeal by learned counsel to the parties, the ultimate result is to adjudge this appeal as meritless. It fails and is accordingly dismissed by me. I affirm the judgment of the Court of Appeal, Ilorin division (the lower Court) which had earlier affirmed the judgment of the trial Court. Appeal dismissed.

---

SC.519/2015