ADEYINKA AJIBOYE v. FEDERAL REPUBLIC OF NIGERIA (2014)

ADEYINKA AJIBOYE v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7644(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of December, 2014

CA/IL/C.51/2014

RATIO

EVIDENCE: CALLING WITNESSES; WHETHER THE PROSECUTION IS NOT BOUND TO CALL EVERY WITNESS WHO ARE PRESENT AT LOCUS CRIMINALS AND THE MEANING AND IMPORT OF PROOF BEYOND REASONABLE DOUBT

In any criminal case as in this the prosecution is not bound to call every witness who are present at locus criminals. It is only to call witness who would give relevant evidence in proof of its case.
The learned trial judge is right to have credited the credible witnesses in the judgment.
“In Ankpa v. State (2008) 14 NWLR (Pt. 1106) 72 at 101 paragraph E-F the Supreme Court held thus-:
“Again for the purpose of emphasis, it is now firmly established that where the circumstances of the commission of an offence are positive direct, unequivocal and irresistibly lead to the inference ought to be or should be drawn.”

Proof beyond reasonable doubt is a cardinal principle of law
In Miller v. Minister of Pension (1947) 2 ALL ER 323 H- Denning J (As he then was) reflected on the meaning and import of proof beyond reasonable doubt in relation to the protection of the community when the commission of crime is in issue. His lordship said-: “The degree is well settled, it needs not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibility to defeat the course of justice. If evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.” per. MUSA HASSAN ALKALI, J.C.A.

EVIDENCE; CALLING WITNESSES; THE EFFECT OF THE FAILURE OF THE PROSECUTION TO CALL THE SUPERIOR OFFICER WHO COUNTER SIGN THE STATEMENT

The failure of the prosecution to call the superior officer who counter signed the statements is very material to the admissibility of the statements. In Mbanengen Shande v. The State (2005) ALL FWLR (Pt. 279) 1342 at 1360 The Supreme Court, per Akintan, JSC posited that:

“The Superior officer before whom the appellant was said to have been taken and who was said to have read the statement to the appellant and made an endorsement thereon, was not called as a witness and no reason was given for the failure to call him. These omissions on the part of the prosecution in my view are very material.” per. MUSA HASSAN ALKALI, J.C.A.

EVIDENCE: CONTRADICTORY EVIDENCE; THE EFFECT OF CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION

The law is settled that where there are contradictions in the evidence of the prosecution on a material issue, the doubt in the contradiction is liable to be resolved in favour of the accused. Refer to the case of Ifeanyi Chukwu v. State (1996) 9-10 SCNJ 119 at 133, Iboh v. State (1997) 1 SCNJ, 256, Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538 at 545 and Ndike v. State (1994) 8 NWLR (Pt. 360) 330. per. MUSA HASSAN ALKALI, J.C.A.

EVIDENCE: CONFESSION; WHETHER CONFESSION ALONE WITHOUT CORROBORATION CAN SUPPORT A CONVICTION

In James Obi Achabua v. The State (1976) 12 SC 12 SC 63 where in Obaseki, JSC Stated as follows:
“The secrecy with which criminals perpetrate their crimes has tendered to deprive the prosecution in some case of eye-witnesses. Hence confession alone even without corroboration can support a conviction so long as the court is satisfied of its truth.” per. MUSA HASSAN ALKALI, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

ADEYINKA AJIBOYE Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

MUSA HASSAN ALKALI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kwara State High Court of Justice Ilorin Suit No. KWS/56.C.2011 which was delivered by Hon. Justice M. AbdulGafar on 11th day of February, 2014 whereby the appellant was convicted and sentenced to 3 years imprisonment for the offences of theft and criminal breach of trust under section 289 and 314 of the penal code.
The appellant was arraigned before the High Court of Justice Ilorin Kwara State on four count charges for theft contrary to sections 289 of the penal code and breach of trust contrary to 314 of the penal code.
The appellant was present in court from the beginning to the end of the trial. Each count of the charge was read, translated into English Yoruba and vice versa. The appellant also pleaded not guilty to the trial.
The four count charges are read thus:-

COUNT – 1
That you Adeyinka Ajiboye, between September, 2008 and July, 2009 at Ilorin within the jurisdiction of this Honorable Court, being an Automated Teller Machine (ATM) custodian of Guaranty Trust Bank, committed theft in the Sum of N46,201,100.00 (Forty Six million, Two hundred and One thousand, One hundred Naira) in the possession of the said 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 Ilorin within the jurisdiction of this Honorable Court, being an Automated Teller Machine (ATM) 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 said 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 Honorable 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 offence punishable under section 314 of the penal code.

COUNT – 4
That you Adeyinka Ajiboye, between September, 2008 and July, 2009 at Ilorin within the jurisdiction of this Honorable 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 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.

Fourteen witnesses were called and testified in the proceeding.
Trial within trial was conducted on two occasions in order to determine the voluntariness or otherwise of the statements credited to the appellant. In respect of the 1st trial within trial proceeding arising from the evidence of police officer (ASP) Sunday Afolayan PW2, the court overruled the objection and admitted the statements in evidence marking them exhibits P5-9 respectively see page 183 for the proceedings. In respect of the 2nd trial within trial arising from the evidence of Inspector Yisa Ibrahim, whose duty as a detective is to investigate financial crime PW3. The court at page 215 overruled the objection and admitted the statement of the accused made on the 15/7/2009 in evidence and mark it exhibit P21.

In the course of prosecution’s case several documents were tendered and admitted in evidence including the confessional statement of the appellant which was made voluntarily exhibit P21. Exhibits tendered such exhibit 1 – letter written by the Guaranty Trust Bank to the EFCC. Exhibits – P2, 3, 4 pertaining to ATM 1, 2 and 3. Exhibits 9-10 reports from the Intercontinental Bank PLC and Guaranty Trust Bank admitted as evidence without objection. Exhibits 15, 16 and 17 are letters from 3 (three) Banks, First Bank, Intercontinental Bank and Guaranty Trust Bank were admitted as evidence. Exhibit 18 search warrant tendered as evidence. Exhibit 20 photographs tendered in evidence. On the part of the appellant, he gave evidence for himself in defending the allegation and did not call any other witness.
Counsel on both sides addressed the court.
In a considered judgment, the learned trial judge convicted the appellant, sentenced him to terms of imprisonment ordered him to pay compensation to Guaranty Trust Bank PLC (the complainant) and forfeited the property of the appellant to Guaranty Trust Bank PLC in the following terms:-

“Consequently I order that the accused pay compensation to Guaranty Trust Bank PLC in the sum of N25,000,000.00 (Twenty-Five million Naira) which he admitted to have filched from the Bank less the amount of N15,000,000.00 (Fifteen million Naira) that PW 1 said was recovered. The accused shall therefore pay the sum of N10,000,000.00 (Ten Million Naira) to Guaranty Trust Bank PLC. I also exercise the power under sections 19 and 20 of EFCC Act to order the forfeiture to Guaranty Trust Bank the property admitted built by the accused from the proceeds of the fraud.
I hereby sentence the accused to a term of three (3) years imprisonment without option of fine, in respect of count 2 while I sentence him to a term of 3 (three) years imprisonment in respect of count 4 both terms to run concurrently”.

The “appellant” herein being dissatisfied/aggrieved by the judgment of the Kwara State High Court of Justice Ilorin Suit No. KWS/56.C/2011 which was delivered by Hon. Justice M. AbdulGafar on 11th day of February, 2014 hereby appealed to this court upon Seven grounds set out in paragraph 3 of the Notice of Appeal dated and filed on the 5th day of March, 2014.
The seven grounds contained in the Notice of Appeal are hereby adumbrated with held particulars as follows-

GROUND ONE
The learned trial judge erred in law and misdirected himself on facts when he held that the PW1, PW4, PW6 and PW7 establish clearly that the accused was the ATM custodian at Ilorin G.R.A. Branch of Guaranty Trust Bank who is charged with the responsibility of loading cash into ATM machines.

GROUND TWO
The learned trial judge erred in law and misdirected himself on facts when he held that he preferred the evidence of PW1, PW4, PW5, PW6 and PW7 to that of the appellant.

GROUND THREE
The learned trial judge erred in law when in convicting the appellant, he relied heavily on his confessional statements and oral statement purporting to be a confession.

GROUND FOUR
The learned trial judge erred in law in holding that the prosecution has proved beyond reasonable doubt that the appellant committed theft of the sum of N25,000,000.00 (Twenty Five million Naira) the property of Guaranty Trust Bank and convicted and sentenced him accordingly.

GROUND FIVE
The learned trial judge erred in law when he convicted and sentenced the appellant for the offence of criminal breach of trust.

GROUND SIX
The learned judge of the lower court erred in law in exercising a purported power under sections 19 and 20 of the EFCC Act to order a forfeiture of the appellant’s property to Guaranty Trust Bank.

GROUND SEVEN
The judgment of the trial court is unreasonable, unwarranted and cannot be supported having regard to evidence.
Parties to this appeal exchanged their respective briefs in accordance with the Court of Appeal Rules 2011.

In compliance with order 18 Rules 3(1) of the Court of Appeal Rules 2011 the appellant’s brief of argument filed on the 26th day of May, 2014 was settled by Dr. D. A. Ariyoosu. He relied on all submissions and thereby adopted the brief. After receiving the respondent’s brief of argument the appellant counsel Dr. D. A. Ariyoosu further filed the appellant’s reply brief of ten pages filed on the 2nd day of September, 2014 and urged the court to discountenance of the submissions of respondent’s counsels and allow the appellant’s appeal in its entirety.

Four issues for determination are distilled from seven grounds as follows:-

ISSUE ONE
Whether, in view of the circumstances of this case, the appellant could safely be convicted and sentenced as done by the trial judge on the basis of the fact that the appellant was the ATM custodian of Ilorin GRA Branch of Guaranty Trust Bank PLC. Distilled from ground 1

ISSUE TWO
Whether the statements credited to the appellant as his confessional statements are admissible and worthy of being relied upon in convicting the appellant. Distilled from ground 3.

ISSUE THREE
Whether the learned trial judge was right in relying on sections 19 and 20 of the EFCC Act to order forfeiture of the appellant’s property to Guaranty Trust Bank PLC having ordered him to pay compensation to Guaranty Trust Bank Plc. Distilled from ground 6.

ISSUE FOUR
Whether, on the totality of the evidence in this case, the respondent proved the offences alleged against the appellant as the required by law. Distilled from grounds 2, 3, 5 and 7 of the grounds of appeal.

In compliance with Order 18 Rule 4(1) and (2) of the Court of Appeal Rules 2011. The respondent’s brief of argument filed on the 18th day of August 2014 was settled by the respondent’s counsel, Rotimi Oyedepo Iseoluwa. He relied on all submissions and thereby adopts the brief. He urged the court to dismiss this appeal and uphold the judgment of the learned trial judge.
In the course of this appeal counsels for the parties argue on submissions based on legal principles of law on their respective issues for determination.

ISSUE ONE
To start with issue as contain in appellant’s brief of argument. Learned counsel Dr. D. A. Ariyoosu has submit thus –

“whether, in view of circumstances of this case, the appellant could safely be convicted and sentenced as done by the trial judge on the basis of the fact the appellant was the ATM custodian of Ilorin GRA branch of Guaranty Trust Bank Plc.

I submit that the appellant ought not have been convicted and sentenced as done by the learned trial judge on the basis of the fact that he was the ATM custodian at Ilorin GRA branch of GT Bank PLC.
Recalling PW3 as a witness in the case, he confirmed that at the hearing in court I was being asked the accused responsibility in the bank. I stated that both Mr. Segun Adeyanju and the accused managed the ATM.
The appellant corroborated the evidence of PW1 – PW7 that he was not the only ATM custodian of Guaranty Trust Bank at its Ilorin GRA branch when he stated under examination in chief that:

“I work with other ATM custodians in the branch. The other custodians of ATM at the branch were Segun Adeyanju, PW6, Tope Elufidiya PW7, Babafemi Femi, Yemi Oyefolarin (Sicl Oyedokun) PW5 Hakeem Adefoige and one Yomi (see page 243 of the record)”

The law is settled now that where a court misapprehends a case before him and goes on to decide the case as misapprehended its decision is liable to be set aside. I refer to the Supreme Court case of Adejugba v. Ologunja (2004) 2 SC (part II) 44 at page 46 and 47.What is good for the goose is also good for the gander. If other staff of the Guaranty Trust Bank who are also custodians of ATM at GRA, Ilorin bank branch of the bank, and who are saddled with responsibility of loading cash into ATM, could not be accused of pilfering cash then the appellant could not have been reasonably so accused.
Finally on this issue, I urge the court to resolve this issue in favour of the appellant and hold that the appellant ought not to have even been suspected, let alone of being convicted and sentenced on the basis of being a custodian of ATM.

In response to the appellant’s issue, the respondent’s counsel Rotimi Oyedepo Iseoluwa reply by making his submission and argument as same on issue one starting from page 4 thus –
The prosecution has successfully discharged the burden placed on it by proving the essential elements of the offences preferred against the appellant.
It is necessary to note that the trial judge convicted the appellant only on counts 2 and 4 of the charge.

COUNT – 2 THEFT
In count 2 of the charge it was alleged that the appellant between September, 2008 and July 2009 at Ilorin within the Ilorin Judicial Division of the trial 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 possession of the said bank contrary to section 289 of the penal code.

“whoever, being a clock or servant or being employed in the capacity of a clock or a servant commits theft, in respect of any property in the possession of his master or employer, shall punished with imprisonment for a term which may extend to seven years or with fine or with both.”

For the prosecution to succeed in proving theft the following element must be proved
(a) That the accused was at the time of the offence a committed clerk or servant and was employed in that capacity by the person in whose possession the stolen property was.
(b) That the property in question is moveable property.
(c) That the property was in the possession of the employer
(d) That the accused moved the property whilst in the possession of that employer.
(e) That he did so without the consent of his employer
(f) That he did so in order to take the property out of the possession of his employer.
(g) That he did so with intent to cause wrongful gain to himself or wrongful loss to the employer.
That the prosecution placed enough evidence before the trial court showing that the appellant was a servant of the Guaranty Trust Bank and that the alleged offence of theft took place whilst he was still the servant of the Bank. All the prosecution witnesses established that the appellant was in the employment of the Bank and that he was even the ATM custodian whilst the alleged offence was committed. The appellant himself in his statement exhibit P5 also admitted this when he stated as follow-

“I worked in Trade Bank previously and Guaranty Trust Bank which I joined in 2006 in Lagos. I was transferred to GRA Ilorin Branch as an Assistant Banking Officer”.

Apart from the evidence of the prosecution witnesses PW1 to PW7, the appellant in his statement exhibit P21 also stated as follow-

“My modus operand. During weekends I will go to office with the pre to load cash into ATM and at this point I will take money into the cash bag that contains the keg of the ATM. I will take the cash into my car parked outside the branch.”

It was in evidence before the trial court that the consent of the bank was not sought and obtained to enable the appellant moved the said sum. This was demonstrated vide exhibit P1 which is the petition of the bank to the Economic and Financial Crime Commission and the evidence of all the prosecution witnesses.

COUNT -4 – CRIMINAL BREACH OF TRUST

The appellant was charged in count 4 for criminal breach of trust wherein it was alleged as follow:-

“that you Adeyinka Ajiboye, between September, 2008 and July, 2009 at Ilorin within the jurisdiction of this Honorable 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 Naira) being part of the sum to be loaded in an 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.”

The respondent herein proved this count beyond reasonable doubt before the learned trial judge.

Section 311 of the penal code defines the offence as follow-

“Whoever, being in any manner entrusted with property or with any document over property, dishonestly misappropriates or converts to his own use that property or dishonesty, uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or will fully suffers any other person so to do, commits criminal breach of trust”.

Punishable section 314 provides –

“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.”
The ingredients of the offence of criminal breach of trust are listed in Mara v. State (2013) 3 NWLR (2012) 14 NWLR (Pt. 1320) page 287 at 318 to 319 at paragraph C where Onu, JSC held as follow-
“In order to procure a conviction for the above offence, the prosecution must prove or establish the following ingredients-:
(a) That the accused was a clerk or servant of the person reposing trust in him.
(b) That he in such capacity entrusted with the property in question or with dominion over it.
(c) That he committed breach of trust in respect of it.”

The prosecution also tendered exhibit P1 which is the petition of the Bank to the EFCC identifying the accused as the staff of the bank as at the time the offence was committed. (See page 1 of the record of proceeding) we therefore urge the court that the respondent proved beyond reasonable doubt the offence of its case against the appeal. We refer to the case of Alake v. State (1997) 7 NWLR (Pt. 205) 567 at 591 where His lordship Honorable Justice Niki Tobi defines what amount to a reasonable doubt in the con of our criminal jurisdiction as follow-:

“It is generally believed that once there is the slightest doubt in the mind of the court, then the accused must, as a matter of law be discharged and acquitted. I think that is rather a wide statement of the legal position. That was the position I took in Sanni Adisa v. The State (1991) 1 NWLR (Pt. 168) 490. I have since realized that I went too far. I think the objective “reasonable” qualifying the noun “doubt” should not give rise to that every wide statement. I think the position should be this. Once the ingredients of the particular offence the accused person is charged with are proved, that constitutes proof beyond reasonable doubt otherwise not. I must apologize to the profession for stating the principles so wide and beyond its already onerous ambit.”

RESOLUTION ON ISSUE ONE

At pages 280-281 paragraphs 67-68 learned trial judge has rightly found thus-:

“The only defence that I can make out of the defendants case is that he was not the only one in charges as PW5, PW6 and PW7 were also ATM custodian loading cash into the machines. His oral confession and the confessional statements has removed the wind out of the sail of the defence with the accused exonerating them. I therefore find that the prosecution has established beyond reasonable doubt that the accused committed theft of the sum of N25,000,000.00 (Twenty-five million Naira) the property of GT Bank and I convict him of count 2 as charged.
With regard to count 4 alleging criminal breach of trust of the sum of N25,000,000.00 (Twenty-five million Naira) entrusted to him by his employers, I hold that from the evidence of PW1, PW4, PW5, and PW7 the accused as the ATM custodian of GRA, Ilorin branch an employee of GT Bank PLC was entrusted with cash meant, for dispense at ATM machine in the bank. The evidence of the witness, exhibits P2-P4, exhibits P9-P11, the oral confessional statements in exhibits P5-P8 and P21 proved beyond reasonable doubt that accused committed criminal breach of trust in respect of the money entrusted to him. See Onogwu v. The State (1995) 6 NWLR (Pt. 401) 276. Consequently convict the accused on count 4”

“The degree is well settled, it needs not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibility to defeat the course of justice. If evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.”

It is my firm 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.

ISSUE TWO

“Whether the statements credited to the appellant as his confessional statements are admissible and worthy of being relied upon in convicting the appellant.”

Learned counsel Dr. D. A. Ariyoosu on behalf of the appellant said thus-:
The exhibits P5-P8 and P21, being purported confessional statements of the appellant are not legal evidence before the court as they are neither admissible in evidence not worthy of being relied upon in convicting the appellant.
The evidence of PW2, the purported confessional statements of the appellants were taken to a superior officer, DDS Ronke Oyeleyin, before whom the appellant was said to have taken and before whom the statements were said to have been read to the appellant and who also counter signed. The said superior officer was never called as a witness and no reason whatsoever was given for the failure of the prosecution to call her. The failure of the prosecution to call the superior officer as a witness is fatal to the prosecution’s case and makes the purported statements inadmissible and cannot be used against the appellant. The failure of the prosecution to call the superior officer raises a presumption of withholding evidence. If the superior officer had been called as a witness, the evidence she would have given would have been unfavorable to the prosecution’s case. I refer to the cases of Nweke Onah v. The State (1985) 3 NWLR (Pt. 12) 236 at 246 and Ogunsi v. The State (1994) 1 NWLR (Pt. 322) 583 at 592.

On the issue of admissibility of the extra-judicial statements of the appellant is the fact that the appellant was never obliged the opportunity of exercising his right to counsel, despite the fact that he demanded for it. Under cross-examination in trial within trial, PW2 (PW1 in trial within trial) Sunday Afolayan stated that:-

“It is true that the accused asked that his lawyer be present, but as the statement was being taken in Lagos his lawyer was not there. See page 176 of the record.”

I urge the court to so hold as such statements could not be rightly said to have been made voluntarily. This is the position of the court in the State v. Mati Audu (1971) NNLR, 91 at 92 where it was opined that statement made by an accused person on demand cannot be said to have been voluntarily made.
Surprisingly, Hakeem Adefioye who was said to be the appellant’s superior and who suspected the appellant of suppressing find meant for ATM was never called as a witness to corroborate the facts of the commission of the offence. There is no reason whatsoever for the failure of the prosecution to call him. The facts outside the confession cannot be said to have shown that the confessions are true. The evidence of the prosecution’s witness that would have corroborated the confessions is also patterned. The evidence especially of PW1 and PW4 is merely hearsay. Unfortunately for the prosecution Hakeem Adefioye who informed the witnesses of the fact that the appellant was living above his means was never called as a witness. This makes their evidence hearsay an inadmissible in law.

I therefore urge the court to hold that the purported confessional statements credited to the appellant were wrongly admitted by the trial court and they are liable to be expunged from the record.

In response to issue two, learned counsel Rotimi Oyedepo Iseoluwa for the respondent said thus-:

The learned counsel to the appellant argued that the appellant did not volunteer his extra-judicial statements marked exhibits P5 and P21 voluntarily. The arguments of the learned counsel are in three folds to wit-:

(a) That the failure of the prosecution to call one Ronke the Superior Police officer who attested the statement.
(b) That appellant volunteered his statement in the absence of his counsel.
(c) That the statement was written on demand.
The argument of the appellant on the admissibility of the statements are unfounded and we urge the court to discountenance same
Little background facts on the issue of admissibility of exhibits P5 and P21.
On the 20th day of December, 2011 the prosecution opened its case by calling two witnesses described as PW1 and PW2. Whilst the PW2, Sunday Afolayan was given his evidence he sought to tender appellant’s statements which were objected to by his counsel on the ground that the appellant was forced to make the said statement. The trial judge ordered trial within trial. The respondent on that same day called the investigating officer who took the statement and was dully cross-examined. After the cross-examination the prosecution counsel sought for an adjournment to enable him call on DDS Oyeneye the Superior Officer that attested the statement who could not be produced because she was on her annual leave in the United Kingdom. The application for adjournment did not go well with the appellant’s counsel who left the issue to the discretion of the trial judge. The learned trial judge refused the application for Adjournment and the prosecution was left with no option than to close its case to enable the appellant open his defence. See pages 172 and 173 of the record of proceedings. The appellant testified and was cross-examined. Thereafter the learned trial judge ordered for address of counsel after which ruling was reserved. In his ruling, the learned trial judge found on page 182 and 183 of the record as follows

“In this case the evidence relied upon by the prosecution is the evidence of PW1 who stated that the accused made the statement voluntarily. I have considered his evidence and I observed that in spite of the vigorous cross-examination he remained consistent that the accused volunteered the statement. Having watched him while he testified, I hold that he impressed me as a truthful witness. I believe his evidence that he did not threaten or intimidated the accused into making the statements.
With regard to the evidence of the first point which to note is that the basis of the conduct of trial within trial is that the accused was forced to make the statement. However, rather than give concrete evidence of how he was forced to make the statement and by whom what the accused did to the witness box is to regal the court with stories of fear of being taken to EFCC or bail being revoked, not being allowed access to his lawyer before his statement was recorded how the room he was taken was dark how, PW1 showed a hostile countenance when he saw him at EFCC office. The impression I formed of DW1 as I watched him testify is that of a person who was not telling the truth but was just saying what ever came to his mouth. I do not believe his evidence furthermore, he admitted during cross-examination that he at various point admitted the facts that are contained in the statement for example with the police at the Anti Fraud unit in Lagos. The accused also admitted that he mentioned the things he bought with the money, the conclusion I have came to is that the accused made the statements voluntarily. Consequently, I hold that the prosecution has established beyond doubt that the accused voluntarily made the statements. I therefore overrule the objection and admit the statements in evidence marking them exhibits P9-P9 respectively.”

See pages 171-183 of the record of proceedings for the trial within trial.
It is our submission that the respondent herein proved its case in the trial within trial before the learned trial judge to justify the admission of exhibits P5 and P21.
In the case of Kim v. The State (1992) 4 NWLR (Pt. 233) 17 at 25 paragraph 14. The Supreme Court enumerated the formal requirement of extra-judicial statement which are that:-
(a) It must carry the usual form for caution.
(b) Each of the words of caution must be in the language understood by the maker.
(c) It must be followed by the maker’s thump-print or signature as the case may be.
(d) It must be recorded in the language understood by the maker.
(e) It must be read over and interpreted to the maker in language in which it is made.
It is our submission that the failure of the prosecution to call DSS Ronke Oyeneyin (who as at the time of the trial within trial was not in the country) is not fatal to the prosecution’s case. The material witness in the trial within trial is the evidence of the investigating officer who cautioned and obtained the statement of the appellant. It is also our submission that the practice of taking an accused person along with his confessional statement of a superior police officer who will read over and interprets the statement to him is not a requirement of the law and failure to comply with such practice will not render a confessional statement in admissible. See Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30 at 64 where Ogbuagu, JSC opined as follows:-
“it need be stressed by me and this is also settled, that there is no requirement of law in Nigeria, but what the practice of taking an accused along with his confessional statement, to a superior officer who reads over and interprets the statement to him and he confirms it as his voluntary statement has been highly commended and a wise one as giving extra assurance of fairness to the accused person and the voluntariness of his confession. See the cases of the Queen v. Omere Wure Sapele and Another in Re German Awip (1957) 2 FSC 24, Nwiboko Obodo and others v. Queen (1958) 4 FSC 1, R v. Igwe (1961) ANLR 330 at 333 and Kim v. The State (1992) 4 SCNJ 81 (1992) 4 NWLR (Pt. 233) 17. Also confessional statements not so treated, should not necessary be viewed with suspicion. See the case of Nwigboke & 6 others v. The Queen (1959) 4 FSC 101 at 102 – per Mbanefo, F. J.”

We therefore submit that, if the failure to take an accused person before a superior officer will not render confessional statement inadmissible then failure to call the Supreme Officer who at the time of the proceedings is not in the country and whose presence can only be procured at unreasonable expenses and delay will not render the appellant’s statements inadmissible. We urge the court to so hold.

It is the law that the prosecution is not mandated to call all its listed witnesses, but only material witnesses. See the Attah v. The State (2009) 15 NWLR (Pt. 1164) page 284 at 313 paragraph H.

It is our submission that the evidence of PW1 and that of the appellant, there was nothing material that DDS Ronke Oyeneyin, the Superior Officer if called would have proffered in her evidence. This was what Ekpe, JCA had in mind when his lordship held in the case of Edoho v. State (2004) 5 NWLR (Pt. 865) page 17 at 51 paragraphs E-F as follows-:
“The question whether David Nwachukwu ought to be called as a witness would depend on the materiality of his evidence in the case. From the evidence of PW2 and the appellant there was nothing material that David Nwachukwu, if called, would have proffered in his evidence, in the circumstance, I am of the view that the failure to call him was not fatal to the case of the prosecution, if the defence had wanted him to testify in the case it was at liberty to call him as a witness.”

We urge the court to discountenance the submission of the learned counsel to the appellant against the admissibility of exhibits P5 and P21.
In the case of Shamde v. State (supra) no trial within trial was conducted to determine the voluntariness or otherwise of the statement as the appellant admitted that the statement was her statement. We refer the court to pages 1353 paragraphs E-F of the Report where Ejiwunmi, JSC stated thus:-

“In this appeal, it is not the case of the appellant that exhibit 5 was not made voluntarily. Indeed at the trial, the appellant readily admitted it as her statement, which she made to the Police. It is also not the case for the appellant that courts below failed to take cognizance of it. Rather the court below accepted it and apparently convicted the appellant on the facts disclosed in the statement, exhibit 5. It is manifest that without the evidence that emanated from exhibit 5, the prosecution would not have had any evidence to establish the guilt of the appellant. Having regard to the evidence disclosed in the said exhibit 5, the courts below were right to have held that the appellant clearly knew or ought to have known that the pouring of kerosene on the body of the deceased and setting it a light would result in the death of the deceased.”

The State v. Mati Audu (1971) NNLR 91 at 92 heavily relied upon by the appellant is not applicable to the instant appeal. Firstly, the case relied on was a decision of Wheeler J. of the High court of Justice Kano whose decision is not binding on this honorable court. Secondly, the fact in that case was entirely distinguishable from the fact of the present appeal. The trial court in the case of State v. Mati Audu (supra) found from the evidence adduced by the prosecution before him that the accused person was tortured before he volunteered his statement, whereas in the instant appeal the learned trial court was unable to make such findings in that the prosecution was able to adduce convincing evidence to the effect that the appellant volunteered his statement voluntarily.
We urge the court to discountenance the argument of the learned counsel for the appellant to the effect that the exhibit P21 was not made voluntarily.
In view of the evidence adduced by the prosecution’s witnesses in trial within trial which evidence was found to be credible by the trial court, we urge the court to hold that the respondent proved beyond reasonable doubt that the appellant volunteered exhibits P-5 and P21 voluntarily.

RESOLUTION ON ISSUE TWO
At pages 214 – 215 paragraphs 21 and 22 of the record of preceding i.e. the conclusion of the trial within trial within trial the learned trial judge made his findings of facts from the evidence of the respondent and the appellant. In admitting the statement his Lordship held as follows:-

“I therefore hold that the accused freely and voluntarily made the statement. I reject the story of the accused that he was hand cuffed chain in the legs and slapped and coerced into making the statement.
I therefore over rule the objection and admit the statement of the accused made on 15/7/2009 in evidence and mark it exhibit P21.”

I rest my resolution in support of the learned trial judge above citing the Supreme Court decision in Agboola v. State (2013) 11 NWLR page 629 where the court held that:

“To sustain a conviction on a confession, the confession must be free, voluntary, direct and positive, whether judicial or extra-judicial, provided the court believes it is the truth. So, if a suspect makes free and voluntary confession in his extra judicial statement to the police, which confession is direct and positive and the court is satisfied with the truth, such confessional statement alone is sufficient to ground and support conviction without corroboration”.
(Alarape v. State (2001) 5 NWLR (Pt. 705) 79, Ubierho v. State (2005) 5 NWLR (Pt. 914) 644 referred to PP646-647 paragraph H-A, 647, paragraphs G-H.

The Court further held that:

“Where an extra judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt regardless of the fact that the maker retracted it altogether at the trial.
Egbogbonome v. State (1993) 7 NWLR (Pt. 360) 383, Osetola v. State (2012) 17 NWLR (Pt. 1329) 251 referred to (p.648, paragraphs D-E). The resolution is hereby in favour of the respondent against the appellant.

ON ISSUE THREE

“Whether the learned trial judge was right in relying on sections 19 and 20 of the EFCC Act to order forfeiture of the appellant’s property to GTBank PLC having ordered him to pay compensation to GT Bank PLC”.

Dr. D. A. Ariyoosu, Learned counsel for the appellant said that the learned trial judge was wrong in relying on sections 19 and 20 of the EFCC Act in ordering forfeiture of the appellant’s property to GT Bank PLC, despite the fact that he ordered him to still pay compensation to GT Bank in the sum of N25,000,000.00.
Upon convicting the appellant on counts 2 and 4 as charged, the Learned trial judge held as follows:-

“Consequently I order that the accused pay compensation to GT Bank PLC in the sum of N25,000,000.00 which he admitted to have filched from the Bank less the amount of N15,000,000.00 that PW1 said was recovered. The accused shall therefore pay the sum of N10,000,000.00 to GT Bank PLC. I also exercise the power under sections 19 and 20 of the EFCC Act to order the forfeiture to the GT Bank PLC the property admittedly built by the accused from the proceeds of the fraud.
I hereby sentence the accused to a term of 3 years without option of fine in respect of count 2 while I sentence him to a term of 3 years in respect of count 4 both prison to run concurrently.”

The complaint of the appellant in the above holding of the trial judge in the first instance is that the learned trial judge has no power whatsoever under the EFCC Act to order forfeiture of the appellants’ property to GTBank PLC.
The reliance placed on section 19 of the EFCC Act in forfeiting the appellant’s property to GT Bank PLC is a misconception and gross misinterpretation of the provision of the EFCC Act. The section (Section 19 of the EFCC Act) merely deals with jurisdiction and special powers of the Federal High Court or High Court of a State or of Federal Capital Territory. It has nothing to do with powers to forfeiture the accused property.
Similarly, there is no provision under the provisions empowering the learned trial judge to order forfeiture of property of convict to a body corporate like GT Bank PLC. So from whatever angle one looks at the issue, the learned trial judge’s decision forfeiting the property of the appellant to GT Bank is wrong in Law and such a decision is liable to be set aside.
I submit therefore that whether one looks at the issue from the angle of Lack of power of the court below to order forfeiture of the appellants’ property to GT Bank PLC, or from the angle of double Jeopardy to be suffered by the appellant, the learned trial judge was wrong in exercising any power under sections 19 and 20 of the EFCC Act to order a forfeiture of the appellant’s property to GT Bank PLC.

I urge the court to resolve the issue in favour of the appellant.
In response to this particular issue three.
The Learned counsel Rotimi Oyedepo Iseoluwa on behalf of the respondent has comment seriously on the order of restitution of the appellant’s property to Guaranty Trust Bank. He replied thus:

It is our humble submission that the contention of the appellant is highly misconceived and same ought to be discountenanced by this honorable court. The germane question that should be asked is whether from the facts and circumstances of this case, it can be said that it is illegal for the learned trial judge to make an order of forfeiture in respect of properties acquired by the appellant with the proceeds of the offence for which he was rightly convicted in favour of the victim of the offence.
We submitted that by the combine 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 no limit has been set as to the amount. The learned trial judge upon convicting the offender can award to the victim of the offence by way of compensation. This is what Muhammad, (JSC) had in the case of Martins v. C.O.P. (2013) 4 NWLR (Pt. 1343) page 25 at 47 paragraphs F-G when his lordship opined as follows:-

“what is significant is that under either section 78 of the penal code which provides specifically for compensation arising from conviction for offences under 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 awarded the victim of the offence by way of compensation.”
Ogunbiyi, JSC at page 51 of the Report also had this to say:

“The sections 78 and 365 of the penal code and criminal procedure code respectively ought to be given their clear meaning where in the award of compensation made by the Chief Magistrate Grade 1 was within the exercise of the powers conferred on him. The award was made after the appellant was properly convicted of the offence of criminal breach of trust under section 314 of the Penal Code. It was not, in other words made at large but very well within its proper con of jurisdictional competence.”

It is not in doubt that the appellant admitted that he acquired the property with the proceeds of the crime for which he was convicted. That being the case, the learned trial Judge has the power under the provisions of section 20 (1) (b) of the EFCC Act, 2004 to order the forfeiture of the said property to the Federal Government of Nigeria.
From the provisions section 7 of the EFCC Act, 2004, the EFCC is empowered under its special power to investigate and prosecute Economic and Financial Crimes under the existing legislation such as the penal code as in this case. To that extend, the EFCC Act is clearly applicable to this appeal and the order of for feature of the appellant’s property will not amount to double jeopardy since the property is liable to be forfeited under section 20 of the EFCC Act.
We urge the court to uphold the order of the learned trial Judge or in the alternative vary the order to directing the property to be forfeited to the federal government of Nigeria so as to prevent the appellant from benefitting from the proceeds of crime for which he was rightly convicted.

RESOLUTION ON ISSUE THREE

Exhibit P21 was admitted by the learned trial Judge after conducting the 2nd trial within trial in the case. The respondent called 3 witnesses in the 2nd trial within trial. They are TWT – (1) Dotun Olorundero, TWT (2) Tope Aluko and TWT (3) Habib Afolabi. Their evidence are contained in pages 191 to 197. The appellant DW1 – Adeyinka Adeboye testified on his own behalf and was dully cross-examined (See pages 197-201). It need be said also that exhibit P21 is a statement made by the appellant to his employer when the fraud was discovered and the appellant made oral confession to same. See page 195 of the record of proceeding. The officer of the Bank before whom the appellant made his statement testified as follows-

“when we visited Ilorin and the accused owned up that he diverted the funds. He pleaded with us not to report to the authorities. He told us what and what he did like building a house, buying 3 cars and putting some of the money in the wife, sister and daughter accounts. He made the verbal confession. When we came to Ilorin. He made the written confession in our office in Ibadan, he made the confession in our office. It was an air conditioned office. He sat down with us and wrote the confession willingly”.

It is noted that the appellant’s major contention was that the learned trial Judge exercise 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:

“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 appellant’s properties to Guaranty Trust Bank Plc having ordered him to pay compensation to GT Bank plc. Also Section 78 of the penal code to cure the whole defect of the proceeds of the crimes.
Issue three is hereby resolved in favour of the respondent against the appellant.

ON ISSUE FOUR

“Whether, on the totality of the evidence in this case, the respondent proved the offences alleged against the appellant as required by law.”

On behalf of the appellant, learned counsel Dr. D. A. Ariyoosu said that the respondent failed woefully to prove the offences alleged against the appellant as required by law. Hence the conviction and sentence of the appellant by the court below are liable to be set aside.

Contrary to the holding of the learned trial judge that the accused was the person in charge of ATM operations of the branch and others deputized. The record is clear that other staffs of the bank are also fully in charge of ATM operations. Thus PW1 State under cross-examination that

“There is Hakeem Adefioye the superior, Tope Ilufidiya. There may be other staff in the branch apart from those I mentioned, I know that other staff apart from accused take cash from the vault to feed the ATM machine. The regulation of GT BANK is that there should be two people on ATM. One feeds in the money, the other does the proof.”

There is therefore no basis for the learned trial judge preferring the evidence of PW1, PW4, PW5, PW6 and PW7 to that of the appellant. At any rate, there is no direct evidence against the appellant attesting to the commission of the offence alleged against the appellant. There is no eye witness. The evidence relied upon is circumstantial and for circumstantial evidence to be a basis for conviction. It must be direct, positive and unequivocal and point to the irresistible conclusion that the appellant actually committed the alleged offences. Refer to the case Okele v. State (1999) 2 NWLR (Pt. 589) 243 at 277 where Tobi, JCA (as he then was) put it succinctly clear that:

“And because circumstantial evidence arises from the prevailing circumstances of the case, it must point to the guilt of the accused person with the minute accuracy of mathematic 1+1=2.”

In the instance case, the charge against the appellant was actuated by suspicion to the effect that the appellant was living above his means as he bought a car for himself, for his wife and his friend.
The failure of the prosecution to call Hakeem Adefioye is fatal to the prosecution’s case and the only inescapable inference to be drawn from this is that his evidence would have been against, and unfavorable to the prosecution’s case if he had been called. Refer to the case of Nweke Onah v. State (1985) 3 NWLR (Pt. 12) 236 at 245 and Ogunsi v. State (1994) 1 NWLR (Pt. 322) 583 at 592.”

On the effect of the failure of the prosecution to call witness listed in the proof of evidence, and especially vital witness, such as Hakeem Adefioye it has been held in Onuoha v. State (1995) 3 NWLR (Pt. 385) 591 at 599.
That failure to call Hakeem Adefioye as a witness is fatal to the prosecution’s case, then the evidence of the prosecution’s witness (and albeit, the case) based on the report of the said Hakeem Adefioye becomes hearsay evidence and grossly unreliable, I therefore urge the court to resolve this issue in favour of the appellant.
In his response on issue four, on behalf of the respondent. Rotimi Oyedepo Iseoluwa submit that the respondent has placed credible evidence before this Honorable court showing that the appellant was in his capacity as servant of the bank entrusted with the responsibility of being the custodian of the ATM Machine, GRA Ilorin branch of the bank and as such he was in charge of feeding the machine with cash. From the evidence led before learned trial judge, it was clear that the appellant receives cash from the vault which cash was to be loaded in the ATM. It is also in evidence that the appellant often loads the ATM with cash both on weekends and weekdays.
We humbly refer to pages 165, 166, 167, 168, 169, 170, 171, 184, 185, 186, 187, 188, 189, 190, 206, 208, 215, 220, 225-230, 232-237 of the records of proceedings and exhibits P5 and P21 wherein the appellant’s voluntarily admitted that the he was an ATM custodian and as such often loads money into ATM.
From the evidence led, the respondent herein placed enough evidence before the trial court in establishing that the GT Bank entrusted the cash to be loaded in taken from vault of the Bank. Flowing from the 2nd ingredient is the 3rd ingredient which requires the prosecution to show that the accused person committed breach of trust in respect of property entrusted to him. The respondent proved this ingredient beyond reasonable doubt placing cogent, compelling and sufficient evidence before learned trial court. From exhibit 5, the accused person in his statement admitted that he suppressed ATM cash. The appellant in exhibit P21 stated as follow:-

“The petition of suppressing Forty-six million Naira (N46,000,000.00) against me was not true. I only suppress twenty five million Naira which was discovered when I was detained by the Bank and of which a cash total of N14,000,000.00 was recovered from me.”

Also in exhibit P21 the appellant even before the case was reported to the Economic and Financial Crimes Commission confessed that he committed criminal breach of trust in respect of the ATM money belonging to the Bank. In the said statement, the appellant confessed as follow:

“my modus operandi

During weekends I will go to office with the pre to load cash into ATM and at this point I will take money into the cash bag that contain the keys of the ATM. I will take the cash into my car parked outside the branch. Also during weekdays I took part of the cash unload, from the machine and deposit them into my sister account and wife account.”

The appellant also stated how he utilized the money when he admitted in exhibit P21 as follow:

“Detail on how money was spent
1. Time deposit on wife account N1,5000,000.00
2. Time deposit on sister account N2,000,000.00
3. Time deposit at Intercontinental Bank N2,000,000.00
4. Time deposit at Oceanic Bank N1,000,000.00
5. Cash balance at Intercontinental Bank N1,000,000.00
6. Account balance at Intercontinental Bank N1,000,000.00
7. Cash at hand N450,000.00
8. Honda Accord N2,500,000.00
9. 1st Sienna Car N1,250,000.00
10. 2nd Sienna Car N1,100,000.00
11. Trip to UK with family N2,500,000.00
12. Building project……….

We therefore urge the court to hold that the appellant committed breach of trust in respect of the ATM money suppressed by him.
In the case of Onogwu v. State (Supra) the Supreme Court in upholding the conviction of the appellant a cashier at the Bank of the North held at page 294 paragraph B as follow:

“The totality of the evidence adduced at the trial portions of which I have adverted in this judgment clearly disclose the offence of criminal breach of trust. Evidence abounds from the testimonies of PW1, PW2, PW3, PW4 and the appellant himself that she (appellant) was a cashier 1 at the Bank of the North, Makurdi, that as servant, the Bank reposed trust in her, that in that capacity she was entrusted with the property in question, to wit N50,000.00 and that she committed breach of trust in respect of that amount.
In this regard, it is trite law that what is admitted or not challenged needs no further proof. See Okaraeke v. Egbuonu (1941) 7 WACA 53 and Owosho v. Dada (1984) 7 SC 149 at 163-164. It is incontestable that the appellant was cashier 1 and that while performing her duty on 1st July, 1983, she paid out a total N50,500.00 to persons not entitled thereto. The appellant in her testimony, an extract of which I have quoted elsewhere in this judgment as well as in her statement (exhs 1 and 2) said that much. I will be idle to require evidence to prove that as cashier, it was her duty to pay her employer’s money to its customers on demand in that the money she paid out on that fateful day without observing the procedures required of her before such payments, was not her money but that of her employer she collected for disbursement to those customers. This is the more so when evidence adduced at the trial court showed palpable that the payees of the amount in question were fictitious and as such were not her employer’s customer.”

RESOLUTION ON ISSUE FOUR

Judgment of the court below see page 275-276 of the record. The judge held as follows:

“I have considered the evidence of the prosecution against the accused. I have reviewed the evidence of PW1 – PW7. I am of the view that PW1, PW4, PW6 and PW7 establish clearly that the accused was the ATM custodian at Ilorin GRA branch of GTBank who is charged with the reasonability (Sic: responsibility) of loading cash into ATM machines. I prefer their evidence to the case the accused tried to set up of there being many ATM custodians with him being one of them. PW1, PW4, PW5, PW6 and PW 7 impressed me as witnesses of truth. I prefer their evidence to the evidence of the accused in this regard-

Furthermore exhibit P2-P4 which the accused admitted preparing shows PW5, PW6, and PW7 were only involved on occasions that were few and far between. It therefore strengthens the evidence of PW1, PW4, PW5, PW6 and PW7 that the accused was the person in charge of ATM operations of the branch and others deputized in his absence.”

He further held at pages 280-281 paragraphs 67-68 as follows-:

“The only defence that I can make out of the defendant’s case is that he was not the only one in charge as PW5, PW6, and PW7 were also ATM custodian loading cash into the machines. His oral confession and the confessional statement has removed the wind out of the sail of the defence with the accused exonerating them. I therefore find that the prosecution has established beyond reasonable doubt that the accused committed theft of the sum of N25,000,000.00 the property of the GTBank and I convict him of count 2 as charge. With regard to count 4 alleging criminal breach of trust of the sum of N25,000,000.00 entrusted to him by his employers. I hold that from the evidence of PW1, PW4, PW5 and PW7 the accused as the ATM custodian of GRA, Ilorin branch an employee of GTBank PLC was entrusted with cash meant, for dispense at ATM machines in the Bank.
The evidence of the witnesses, exhibits P2-P4, exhibits P9-P11, the oral confession of the accused as well as the confessional statements in exhibits P5-P8 and P21 Proved beyond reasonable doubt that accused committed criminal breach of trust in respect of the money entrusted to him. See Onogu v. The State (1995) 6 NWLR (Pt. 401) 276.
Consequently, I convict the accused on count 4.”

I uphold the right judgment delivered by the learned trial judge. I also support it by citing the principles in Fatai v. State (2013) 10 NWLR (Pt. 1361) at page 4 where the Supreme Court held-

“An accused person can be convicted solely on his confessional statement, in other words, if a court of law comes to the conclusion that the statement made by an accused person satisfies all the legal retirements of a confessional statement, particularly as provided under sections 27, 28, 29 of the Evidence Act, 2011 then the charge against the accused must of necessity have been proved beyond reasonable doubt. The reason is simply that the court can and does convict an accused person solely on his confessional statement”

Further held that –
“the court is entitled to act only on the confessional statement of an accused that is direct and relevant in convicting and sentencing the accused. In this case, the appellant’s confessional statement, exhibit 7A, was direct, relevant and un-equivocal about the participation of the appellant in the commission of the offences charges.”
Based on the above reason I rest resolution in favour of the respondent against the appellant.
In the final analysis the appeal lacks in merit, as same fails and is dismissed.
The judgment of the Kwara State High Court of Justice Ilorin Suit No. KWS/56.C/2011 which was delivered by Hon. Justice M. AbdulGafar on 11th day of February, 2014 in favour of the respondent against the appellant is hereby affirmed.

CHIDI NWAOMA UWA, J.C.A.: I have read in advance the draft of the judgment delivered by my learned brother, MUSA HASSAN ALIKALI, JCA. My learned brother has dealt comprehensively with all the issues that have arisen in this appeal. I agree with his reasoning and conclusion arrived at in holding that the appeal is without merit.
I also dismiss the appeal and abide by the Order awarding no costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I agree with the judgment of my learned brother MUSA HASSAN ALKALI, JCA just delivered.
I also dismiss the appeal and affirm the decision of the High Court of Kwara State in case No: KWS/56c/2011.

Appearances

Dr. D. A. AriyoosuFor Appellant

AND

Rotimi Oyedepo Iseoluwa counselFor Respondent