FRN v. KAYODE-BECKLEY (2020)

FRN v. KAYODE-BECKLEY

(2020)LCN/13958(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, February 17, 2020

CA/A/794C/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Tinuade Akomolafe-Wilson Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

AWM JOHN ADENIYI KAYODE-BECKLEY RESPONDENT(S)

RATIO

WHETHER OR NOT THERE IS A PRESUMPTION OF CORRECTNESS OF THE JUDGEMENT OF A COURT

The law is settled that there is presumption of correctness of the Judgment of a Court including the lower Court herein. It is also trite that the evaluation of evidence and ascription of probative value to pieces of evidence led at the trial Court is squarely the prerogative of the trial Court. Where the duty has been dutifully carried out by the trial Court who saw and heard the witnesses in accordance with relevant law and procedure, the appellate Court will not interfere to upturn the findings of the lower Court. See the cases of:-
1. THE STATE VS AHMED RABIU (2013) 4 SCM 200 AT 212 H-I to 212A where 55, ALAGOA, JSC;
2. JOHN NWACHUKWU VS THE STATE (1986) 2 NWLR (PART 25) 765 AT 774 D-E WHERE KARIBI-WHYTE, JSC;
3. THE STATE VS ADAMU ISAH (2019) 1 NWLR (PART 1652) 139 AT 158 H – 159 A – B per M. D. MUHAMMAD;
4. SULEIMAN JIBRIN V FRN (2018) 13 NWLR (PART 1635) 20 AT 30 F – H TO 31A – G per AUGIE, JSC who said:-
“As I pointed out earlier, the issue in this appeal boils down to whether the Court below should have re-evaluated evidence. The law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule, therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – see Fatai V. State (2013) 10 NWLR (Pt. 1361) 1 at 21 SC.
So, when the question of evaluation of evidence involves credibility of witnesses, an appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – see Sogunro & Ors V. Yeku & Ors (2017) LPELR-41905 (SC); (2017) 9 NWLR (Pt. 1570) 290.
“Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole – see Adelumola V. The State (1988) 1 NWLR (Pt. 73) 683 SC.
In this case, the Court below, in resolving the first issue of whether the prosecution proved its case against the appellants, set out the evidence and findings of the trial Court, and stated –
“The trial Court had made findings and conclusions after evaluating the evidence before it. It also ascribed evidential value to the evidence produced before it. PER IGE, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

It is beyond argument that the burden and standard of proof in any criminal proceedings is squarely on the prosecution. This is statutory provided in Section 135(1) (2) and (3) of the Evidence Act 2011 as follows:-
“135(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongly act, is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

(3) if the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt is shifted on the defendant.”
This must be read along with Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended which says:
“36(5) Every person who is charged with a criminal offence shall be presumed to be in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular fact.”
Thus the prosecution is under a duty to prove all the components or elements of the offence for which the offence for which the Accused/Defendant is charged. This can be done or proved vide any of the following methods viz:-
a) By evidence of an eye witness or witnesses;
(b) Through the confessional statement of the accused or Defendant;
(c) Through circumstance evidence.
See the cases of:
1.SHUAIBU ABDU VS. THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 F – H per SANUSI, JSC who said:-
“In all criminal cases the burden of proof squarely lies on the prosecution which always, has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution, such doubt shall be resolved in favour of the accused person. See Famakinwa V. The State (2013) 7 NWLR (Pt. 1354) 597; Kala V. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje V. The State (1976) All NLR 139.”PER IGE, J.C.A.

WHETHER OR NOT THE BURDEN OF PROVING REASONABLE DOUBT SHIFTS TO THE DEFENDANT

The ingredients of the offence must be cumulatively proved or established. The burden is not on Defendant to prove the elements of the offence. The prosecutor must first establish prima facie that the Defendant committed the offence laid against him before evidential onus of showing doubts in the prosecution’s case shifts to the Defendant. See the case of PROF BUKAR BARABE VS FRN (2019) 1 NWLR (PART 1652) 100 at 124 H to 125 A – H where my Lord KEKERE- EKUN, JSC held as follows:
“The Position of the law, which remains constant and inviolable, is that in order to secure a conviction in criminal proceedings, the prosecution has the onerous burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 (1) & (2) of the Evidence Act, 2011; Igabele V. The State (2006) 6 NWLR (Pt. 975) 100; Iko V. The State (2001) LPELR – 1480 (Sc) @ 48A – B, (2001) 14 NWLR (Pt. 732) 221; Lori V. The State (1980) 8-11 SC 81. This is in line with the presumption of innocence guaranteed to any person who is accused of committing a crime, as provided for in Section 36(5) of the 1999 Constitution, as amended. The burden remains on the prosecution throughout the trial and never shifts. However, where the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt shifts to the defendant. See Section 135(3) of the Evidence Act, 2011… In a few limited circumstances, such as where the accused person raises a defence of alibi or insanity, he has the evidentiary burden of adducing such evidence as would raise a reasonable doubt as to his guilt. This is because the facts constituting the defences are strictly within the accused person’s knowledge. See: Ndukwe V. The State (2009) 7 NWLR (Pt. 1139) 43: Akpan V. The State (1991) LPELR – 380 (SC) at 17 -18, F – C, (1991) 3 NWLR (Pt.162) 656: Madjemu V. The State (2001) 13 NWLR (Pt. 730) 375; Isah V. The State (2017) LPELR – 43472 @ 28 – 29, F – E: (2018) 8 NWLR (Pt.1621) 346. His failure to testify, for example, cannot result in a conviction. The prosecution must adduce cogent and compelling evidence to discharge the burden of proving its case beyond reasonable doubt. Any doubt created in the mind of the Court must be resolved in favour of the accused person. See: Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349; Aiguoreghian V. The State (2004) 3 NWLR (Pt. 860) 367; Adie V. The State (1980) NLR 323: Shehu V. The State (2010) 8 NWLR (Pt. 1195 112. PER IGE, J.C.A.

ESTABLISHING THE GUILT OF AN ACCUSED PERSON

In order to establish the guilt of an accused person’s beyond reasonable doubt, the prosecution must prove all the essential elements of the offence or offences with which he is charged. The Court must be satisfied that the totality of the evidence led supports the particulars of the offence as charged. See: Alor V. The State (1997) 4 NWLR (Pt 501) 511; Nwaturuocha V. The State (2011) 6 NWLR (Pt. 1242) 170; Orji V. The State (2008) 10 NWLR (Pt. 1094) 31; George V. FRN (Supra)
I shall now apply the principles to the facts of this case. Count 5 and 6 of the charge were reproduced earlier in this judgment. By the said counts, the Chad Research Institute to confer unfair advantage on his son, Adam Bukar Bababe, by awarding a retainership contract for the maintenance of the Institute’s computers and approving the renewal of the said retainership contract in favour of Cyber Tech. Nig. Ltd. a company allegedly owned mainly by his said son. He is thereby alleged to have committed an offence contrary to and punishable under Section 19 of the Corrupt Practices Act. Section 19 provides;
“Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of the public officer or any other public officer is guilty of an offence and is on conviction liable to imprisonment for five (5) years without option of a fine.
The essential elements of the offence are:
1. That the accused person is a public officer.
2. That he used his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of his or upon any other public officer.” PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Respondent was arraigned by the Appellant before the High Court of Federal Capital Territory, Abuja Judicial Division on one Count Amended Charge which reads as follows:-
“COUNT 1:
That you, AVM JOHN ADENIYI KAYODE-BECKLEY whilst serving as Director of Armament, Nigerian Airforce sometimes in 2015, at Abuja, within the jurisdiction of this Honourable Court did corruptly accept a gift in the sum of Ten Million Naira (10,000,000.00) from one Mr. Himma Aboubakar of Societe D’ Equipments Internationoux Nig. Ltd, a Contractor with Nigerian Airforce in performance of your official act and you thereby committed an offence contrary to Section 17(c) of the same Act.”

The Respondent pleaded not guilty to the said Charge and the matter proceeded to trial at the end of which learned Counsel to the parties exchanged final written addresses which were adopted on 19th June, 2017.

On the 6th of July, 2017, the learned trial Judge (Coram: BANJOKO (J) delivered a considered judgment in the matter wherein she held among other things as follows:-
”In conclusion, the Prosecution have

woefully failed to establish the offence of gratification, against the Defendant and I would be failing in my duty not to point out that this was a needless prosecution. As a matter of fact, with the right training and expertise, and perhaps a little bit more hard work and diligence, the Prosecution would have been able to decipher their unanswered questions.
They have not shown that defendant did not in fact incur these expenses presented to the contractor and have not shown that the reason why payments, which by the way, are not complete, should be returned to the office of the NSA without the addition of the travel ticket expenses, they have also not shown that the contractor confirmed that the payment of these monies were for gratification received in performance of a duty or function. Had they engaged in a more expansive and thorough investigation, perhaps, this charge would not have been brought.
In conclusion, the prosecution failed to establish a case of corrupt gratification under Section 17 of ICPC Act 2000 and he is accordingly discharged and acquitted.
I am equally satisfied that the refund was wrongly returned to the ONSA and

hereby order that the EFCC is to retrieve the said sum of N10,000,000.00 wrongly paid into the account of the ONSA and refund the said sum to the defendant forthwith.”

The Appellant was aggrieved and has by her Notice and Grounds of Appeal dated 12th September, 2017 and filed on the 15th of September 2017 appealed to this Court on seven (7) grounds which without their particulars are as follows:-
“1. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF;
2. GROUNDS OF APPEAL
GROUND 1 (ONE) – ERROR IN LAW:
The Honourable trial Judge erred in law in attaching probative value to Exhibit “H” (Whatsapp printout) as authority for the Respondent to accept the sum of 10,000,000.00 (Ten Million Naira) from Aboubakar Himma (a Contractor with Nigeria Air Force) which error influenced the decision of the lower Court and occasioned a miscarriage of Justice to the Appellant.
GROUND 2 (TWO) – MISDIRECTION IN LAW:
The Honourable trial Judge misdirected himself in law by holding that “It was expected that the prosecution would have furnished the Court with evidence that 1) the NAF was expected to provide the travel and

estacode allowance, and 2) that the defendant did in fact, collect his scheduled estocode from the NAF but yet obtained another payment for estacode from the contractor” which misdirection influenced the decision of the lower Court, and occasioned a miscarriage of justice to the Appellant.
GROUND 3 (THREE) – MISDIRECTION IN LAW:
The Honourable trial Judge misdirected himself in law by holding that “The Confirmation of Deliveries of Armaments had to be signed by the defendant, as it was his responsibility to do so. The question to be answered is whether he refused to perform this duty unless and until he was gratified” which misdirection influenced the decision of the lower Court and occasioned miscarriage of Justice to the Appellant.
GROUND 4 (FOUR) – MISDIRECTION ON IN LAW
The Honourable trial Judge misdirected himself in law by holding that: “The contractor had pleaded for more time to pay all his expenses and had offered to start off with the payment of Ten Million Naira in cheque. From the records, it can be seen that this cheque was twice presented but were returned unpaid and it was only on the third attempt that the

money went through. The first lodgment was on the 22nd of April 2015, the second was on the 28th of April 2015 and the third lodgement was successful on the 7th of May, 2015” which misdirection influenced the decision of the lower Court and occasioned a miscarriage of Justice to the Appellant.
GROUND 5 (FIVE) – MISDIRECTION IN LAW:
The Honourable trial Judge misdirected himself in law by holding that “They have not shown that the defendant did not in fact incur these expenses presented to the contractor and have not shown that the reason why payments, which by the way, are not complete should be returned to the Office of the NSA without the addition of the travel tickets expenses…” which misdirection influenced the decision of the lower Court and occasioned a miscarriage of justice to the Appellant.
GROUND 6 (SIX)
The Honourable trial Judge misdirected himself in law by holding that ‘I am equally satisfied that the refund was wrongly returned to the ONSA and hereby order that the EFCC is to retrieve the said sum of N10,000,000.00 wrongly paid into the account of the ONSA and refund the said sum to the defendant

forthwith” which misdirection influenced the decision of the lower Court and occasioned a miscarriage of justice to the Appellant.
COUNT 7 (SEVEN)
The decision of the trial Court was unreasonable having regard to the evidence of the prosecution adduced at the trial.
FURTHER GROUNDS shall be filed upon the receipt of the record of the proceedings.”
1. RELIEFS SOUGHT FROM THE COURT OF APPEAL
1. AN ORDER of the Honourable Court of Appeal allowing the appeal.
2. AN ORDER of the Honourable Court of Appeal setting aside the judgment of Hon. Justice A. A. I. BANJOKO dated 6th July, 2017, discharging and acquitting the Respondent.
3. AN ORDER of the Honourable Court of Appeal entering a verdict of guilty and consequent conviction upon a proper appraisal and evaluation of the evidence against the Defendant.
4. A FURTHER ORDER of the Honourable Court of Appeal sentencing the Respondent as appropriate on the one count charge he was tried.
5. AN ORDER of the Honourable Court of Appeal setting aside the order of the lower Court for the refund of the N10,000,000.00) (Ten Million Naira) which the Respondent surrendered to

the Appellant as money corruptly earned.
6. AND FOR SUCH FURTHER OR OTHER ORDERS as the Honourable Court of Appeal may deem fit to make in the circumstance.”

The Appellant’s Brief of Argument dated 29th January 2018 was filed on 1st February, 2018 and deemed properly filed on 21st November, 2019 whilst the Respondent’s Brief of Argument dated 24th day of October, 2018 was filed on 29th October, 2018. It was also deemed properly filed and served on 21st November, 2019.

The learned Counsel to the parties adopted their Briefs of Argument on 21st November, 2019. The learned Counsel to the Appellant FRANCIS A. JIRBO, ESQ distilled four issues for determination of the appeal as follows:-
i. Whether the learned trial Judge was right in law to attach probative value to Exhibit “H” (Whatsapp printout) as authority for the Respondent to receive the sum of N10,000,000.00 (Ten Million Naira) from a contractor with the Nigerian Air Force in the guise of estacode (distilled from ground 1 of the Notice of Appeal).
ii. Whether in the absence of any express permission and or understanding, the estacode for a serving public

servant is to be paid by a contractor or his employer (Government or any of us agencies) on a foreign official assignment (distilled from ground 2 of the Notice of Appeal).
iii. Whether in order to qualify as a gratification, it must have been sought for to influence the performance of a public duty distilled from ground 3 of the Notice of Appeal).
iv. Whether the learned triaI Judge was right when he inappropriately considered and evaluated the evidence and the arguments canvassed before him to suit his decision that the Respondent earned and rightly received the sum of N10,000,000.00 as estacode from a contractor with his employer (the Nigerian Air Force (distilled from grounds 4, 5, 6 and 7 of the Notice of Appeal).

On his part, the learned Counsel to the Respondent J. J. USMAN, ESQ formulated two issues for determination of the appeal thus:-
i. Whether the Appellant has proved her case against the Respondent beyond reasonable doubt.
ii. Whether the Appellant has proved the act of “gratification” by showing that the Respondent asked for any benefit of any kind for himself or for any other person in respect of something

to be done afterwards, or something already done.

The appeal herein can be determined on the four issues identified by the Appellant. The four issues will be taken together.

In respect of the first issue as to whether the learned trial Judge was right in law to attach probative value to Exhibit “H” (Whatsapp printout) as authority for the Respondent to receive the sum of N10,000,000.00 (Ten Million Naira) from a contractor with the Nigerian Air Force in the guise of estacode from a contractor with the Nigerian Air Force, the learned Counsel to the Appellant FRANCIS A. JIRBO, ESQ submitted that the learned trial Judge made contradictory findings on Exhibit “H” the whatsapp correspondence between the Respondent and his immediate Boss AVM Mamu. The learned trial Judge according to learned Counsel to the Appellant held on pages 222 – 223 of the Record of Appeal that Exhibit ‘H’ was the only communication between AVM Mamu and Respondent authorizing the trip officially undertaken by the Respondent and the lower Court thus relied on Exhibit “H”.

That the trial Judge immediately thereafter in the judgment found that mode of

communication through whatsapp is not a conventional mode of communication in official matters by Government Agencies but that it was the only indication of an official directive.

The learned Counsel to the Appellant believes that the aforesaid statements by the learned trial Judge reveals that inappropriate weight was attached to Exhibit “H” by the lower Court. That the learned trial Judge relied on hearsay and inadmissible evidence. Reliance was placed on the cases of UTTE V THE STATE (1992) 2 NWLR (PT. 223) 257 and AWUSE V ODILI (2005) ALL FWLR (PART 261) 248. He stated that since the AVM MAMU was available, he ought to have been called by the Respondent to testify concerning the authorization given to Respondent to collect estacode from the Air Force Contractor as contained in Exhibit “H”. That Exhibit “H” remains inadmissible hearsay. He urged the Court to resolve issue 1 in Appellant’s favour.

On issue 2 as to whether in the absence of any express permission and or understanding, the estacode for a serving public servant is to be paid by a contractor or his employer (Government or any of its agencies) on a foreign official

assignment, the learned Counsel to the Appellant referred to the finding of the trial Court to the effect that the prosecution failed to prove that it has paid estacode to Respondent as his travel allowance. That prosecution ought to have established that notwithstanding the payment so made, Respondent collected another estacode from the Contractor. That no double payment or collection of estacode by Respondent was proved by the prosecution.

The argument of the learned Counsel to the Appellant is that the Respondent is a serving Air Vice Marshal of the Nigerian Air Force and that under cross-examination he very well understood what DTA means. According to Appellant’s Counsel, Exhibits C and D which he said are the contract awards in this case contained no clause as to who should bear expenses of the Respondent on his official trips to South Africa and Pakistan.

That contrary to the findings of trial Court, it was not necessary to give evidence of who was supposed to pay Respondent’s estacode having proved that Respondent is still a serving public officer who admitted under cross examination that it is the duty of employer to pay estacodes. That facts

admitted need no further proof. That it is the duty and responsibility of the government or any of its agencies to sponsor its official on assignment until and unless the contrary is proved. That the onus was on the Respondent who asserted the contrary to prove it and NOT on the prosecution as held by the learned trial Judge. He relied on Section 131 of the Evidence Act 2011 as amended. That pursuant to Section 140 of the Evidence Act, the facts claimed are within the knowledge of the Respondent hence the onus was upon him according to the Appellantâs learned Counsel. That it was the Respondent who claimed that his official estacode was to be borne by the Contractor and not his employers (Nigerian Air Force). That Respondent failed to discharge the onus placed upon him. That the lower Court misplaced the burden on the prosecution to prove a fact which the Respondent had admitted. He urged the Court to resolve issue 2 in favour of the Appellant.

On issue 3 as to whether it was necessary for the prosecution to prove that Respondent asked for, the amount for which he was accused before it qualify as a gratification received to influence the performance

of a public duty, the Appellant’s learned Counsel referred this Court to the amended charge against the Respondent to submit that the Corrupt Practices and Other Related Offences Act, 2000 does not define what is gift but that the term “Gift” falls under Section 2 of the Act and particularly under the broader definition of the word “Gratification” which according to Appellant’s learned Counsel falls under subsection (a) and “is classified as a form of gratification to mean given or promise to any person with intent to influence such a person in the performance or non-performance of his duties.

The learned Counsel to the Appellant contended that the finding of the learned trial Court on page 225 of the record of appeal is not in tandem with Section 17(a) of the Corrupt Practices and Other Related Offences Act 2000 under which the Respondent was charged. He sets out whet he believes are the ingredients of the offence under Section 17(a) aforesaid. That there is no duty on the prosecution to prove that a request/demand was made by the Defendant under Section 17(a).
That what the law punishes is the receipt of such a gift.

That it is not the case of Appellant that the Respondent insisted that the Contractor must give him money in the sum of N10 Million before he could sign the confirmation of deliveries (Exhibit E).

He submitted that the lower Court misdirected itself in law when it held that Appellant have to show a demand for a gift on the part of the Respondent before he could be convicted under Section 17(a) of the Corrupt Practices and Other Related Offences Act, 2000.
He urged the Court to resolve the issue 3 in favour of the Appellant.

On issue 4 which has to do with whether the learned trial Judge inappropriately considered and evaluated the evidence to suit his decision he stated that the Respondent earned and rightly received the sum of N10,000,000.00 as estacode from a contractor with his employer – the Nigeria Air Force – the Appellants learned Counsel commenced his argument by making reference to the evidence of PW1, Umar Bello who he said testified among other things to the effect that the Defendant agreed that he was not supposed to receive payment from the Contractor as estacode and that the Defendant returned the money to the Federal Government of Nigeria

with a UBA Bank draft.

That the statement of the Defendant now Respondent made on 15th, 16th and 17th February, 2015 were produced and tendered as Exhibit B. He relied on portion of the Defendant’s statements made on 16/2/15 and 17/2/2015 to submit that the Respondent’s Statements are confessional coupled with his willingness to refund the N10 Million to the Federal Government. He relied on the case of AKPA V THE STATE (2008) 14 NWLR (PT. 1106) 72. That the confessional statement is sufficient to sustain a conviction.

On what are outside the confessional statement to show that the contents are true. He relied on Exhibits A and E and the pieces of evidence given by PW1, PW2, PW3. He also stated that the Respondent was a Director of Armament of the Nigerian Air Force whose duties include pre-inspection of Military Supplies to the Nigerian Air Force. That Respondent confirmed being a Director of Armament on Oath, and that the Respondent had opportunity of committing the crime for which he was charged. That the facts ascertained and proved was consistent with confession made by the Respondent.

He submitted that the Respondent having given

evidence at the trial which is contrary to statement he made, the evidence is unreliable and should be treated as an afterthought and fabricated. That the fabricated evidence of Respondent is aimed at exonerating or exculpating him from criminal responsibility relying on the case of EBERE V STATE (2001) 2 NWLR (PT. 728) 617 AT 642 – 643.

That it was the Respondent who tendered in evidence his confessional statement and that the Honourable trial Court ought to have used it against the Respondent.

He urged the Court to resolve the issue against the Respondent and to allow the appeal, set aside the judgment of lower Court and that this Court should convict the Respondent. The Appellant’s learned Counsel also urged the Court to set aside the order of lower Court for the refund of N10,000,000.00.

The response of the learned Counsel to the Respondent is contained in his arguments on the two issues formulated by the Respondent’s learned Counsel to the Respondent. He narrated how the Respondent was arraigned on one count charge and the fact that the lower Court discharged and acquitted the Respondent after the trial.

He relied on Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 139 of the Evidence Act 2011 and the cases of:
1. OKORO V STATE (1988) NWLR (PT. 94) 255 AT 267 B – E
2. OLOWU V NIGERIAN NAVY (2007) ALL FWLR (PT. 350)1278 AT 130B-1309G-A:
3. WILLIAMS V STATE (1992) NWLR (PT. 261) 515 AT 521 G – H.
4. ALABI V STATE (1993) 7 NWLR (PT. 307) 511 and
5. ARUNA V STATE (1990) NWLR (PT. 155) 125 AT 137 E – H
to submit that the onus is always on the prosecution to establish the guilt of an accused person in that the Constitution presumes an accused to be innocent until the contrary is proved. He referred to Exhibits A, B, C, D, E, F, G, H, J1, J2 and tendered by the prosecution. He stated that though Exhibit “A” a cheque for N10 Million was issued in favour of HIMMA ABOUBAKAR but same was dishonoured on two occasions and returned to the said HIMMA ABOUBAKAR. The said HIMMA ABOUBAKAR credited the Respondent’s account with the sum of N10 Million on 15/5/2015.

He stated that the Appellant failed to lead evidence on the purpose for which Exhibit “A” was issued in favour of Respondent and neither did the

Appellant inform the Court the reasons for the payments of N10 Million into Respondent account by HIMMA ABOUBAKAR. He stated that the Respondent in his statement and oral evidence at the trial Court explained the reasons for the payment of N10 Million to the Respondent’s account. He submitted that in order to secure conviction for offence of gratification, the prosecution must prove all the ingredients of the offence. He relied on Black’s Law Dictionary 8th Edition, 731 for the definition of “gratification” as “a voluntarily given reward or recompense for a service or benefit; a gratuity.” He also relied on Section 12 of the Corrupt Practices and Other Related Offences Act Cap C31, LFN 2004. He submitted that elements of the offence of gratification are the following:-
“1. The actual giving of the money or things (actus reus).
2. That the giving of the money or thing was meant to influence the decision or action of the public officer or the receiver. That is to say the reason for the giving of the money must be specified (mens rea).
3. That the receiver of the money or thing is a position to be influenced by the gratification.”

That the three elements must be cumulatively proved. He relied on the cases of:-
1. AIGUOREGHIAN V STATE (2004) 3 NWLR (PT. 860) 367 AT 407-408 H-A;
2. NWOSU V BOARD OF CUSTOMS AND EXCISE (1988) 5 NWLR (PT. 93) 225 and
3. ALABI V STATE (1993) 7 NWLR (PT. 307) 511.

He relied heavily on the decision of this Court in the case of OJO V FRN (2009) ALL FWLR (PT. 414) 1461 AT 1502 – 506 E – D per OMOLEYE, JCA.
from where he quoted profusely to submit that none of the Appellants witnesses established the reason for the payment of the sum of N10 Million to the Defendant by ABOUAKAR HIMMA.

That the concomitant evidence of Appellants witnesses is that Socite D’ Equipment International Nigeria Ltd owned by one ABOURAKAR HIMMA is a contractor with the Office of the National Security Adviser (ONSA). That the said COMPANY was awarded contract by ONSA for supplying of Military equipments to the Nigerian Air Force while the Respondent was nominated by the NAF to inspect the equipment to be supplied by the contractor. That the witnesses gave evidence to the effect that the contractor paid the sum of N10 Million to the Respondent without stating the reason for the

payment. That all the witnesses agreed or admitted under cross examination that the reason for the payment was not known.

That notwithstanding the statement of Respondent, Exhibit “B” that part of the money was his estacode while the other part was his reimbursement for expenses he incurred on behalf of ABOUBAKR, Appellant failed to investigate the veracity or authenticity of the payment made to the Respondent.

On this score, the learned Counsel to the Respondent submitted that the prosecution has failed to prove its case against the Respondent.
He submitted that the lower Court was right in acquitting the Respondent of the offence charged.

He relied on the evidence of Respondent who stated that being an Air Vice Marshal he is equivalent to a Permanent Secretary in the service and was entitled to estacode for a total of 43 days spent in Pakistan and South Africa under Regulation 1412 of the Finance (Control Management) Act Cap F26 LEN 2004 updated to 31-12-2010 at the rate of $600 per diem. That Respondent was entitled to $25,800 at exchange rate of N200 to 1 dollar totaling N5,160,000.

He drew attention to the evidence of Respondent

that the NAF, his employer can be responsible for the estacode but the contractors working for NAF could also be asked to bear the estacode as in this case.

The Respondent according to Appellant Counsel tendered Exhibits J1 and J2 to show that contractors have paid him estacode in the past for similar trips for his estacode and tickets accommodation and other travelling expenses which were all paid for by Air Force Contractor. He relied on Exhibit B. That PW1 stated that no money was paid to the Respondent for loading and shipping. That PW2 and PW3 also admitted that the Contractor ought to provide travel expenses and estacode. That these are admissions against the Appellant. He relied on the case of ONISAODU V ELEWUJU (2006) 13 NWLR (PT. 998) 517 AT 529 – 530.

On whether Exhibits J1 and J2 which were communications between Respondent and his superior AVM MAMU should be discountenanced, Respondent submitted that that the said evidence is admissible as Respondent was under Section 56 of Armed Forces Act Cap A20 LFN 2004 bound to obey supervisors instructions.

He submitted that the manner in which Exhibits J1 and J2 were obtained and

tendered complied with Section 84 of the Evidence Act 2011 and the cases of:-
1. KUBOR V DICKSON & ORS (2013) 4 NWLR (PT. 1345) 534 AT 577 – 578 D – E;
2. ENL CONSORTIUM LTD V SHAMBILAT SHELTER (NIG) LTD (2018) 11 NWLR (PT. 1630) 315 AT 326 F – G.

That since their authorship and admission in evidence was not opposed by Appellant, Exhibits J1 and J2 cannot now be objected to or complained of. That Exhibits J1 and J2 are admissible and were legally admitted. He relied on the case of EKPE V FAGBEMI (1978) LPELR – 1087 (SC)1 AT 6 B-D.

That from oral and documentary evidence before the Court the Respondent was properly discharged and acquitted. He urged the Court to dismiss the appeal.

will not interfere to upturn the findings of the lower Court. See the cases of:-
1. THE STATE VS AHMED RABIU (2013) 4 SCM 200 AT 212 H-I to 212A where 55, ALAGOA, JSC;
2. JOHN NWACHUKWU VS THE STATE (1986) 2 NWLR (PART 25) 765 AT 774 D-E WHERE KARIBI-WHYTE, JSC;
3. THE STATE VS ADAMU ISAH (2019) 1 NWLR (PART 1652) 139 AT 158 H – 159 A – B per M. D. MUHAMMAD;
4. SULEIMAN JIBRIN V FRN (2018) 13 NWLR (PART 1635) 20 AT 30 F – H TO 31A – G per AUGIE, JSC who said:-
“As I pointed out earlier, the issue in this appeal boils down to whether the Court below should have re-evaluated evidence. The law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule, therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – see Fatai V. State (2013) 10 NWLR (Pt. 1361) 1 at 21 SC.
So, when the question of evaluation of

evidence involves credibility of witnesses, an appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – see Sogunro & Ors V. Yeku & Ors (2017) LPELR-41905 (SC); (2017) 9 NWLR (Pt. 1570) 290.
“Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole – see Adelumola V. The State (1988) 1 NWLR (Pt. 73) 683 SC.
In this case, the Court below, in resolving the first issue of whether the prosecution proved its case against the appellants, set out the evidence and findings of the trial Court, and stated –
“The trial Court had made findings and

conclusions after evaluating the evidence before it. It also ascribed evidential value to the evidence produced before it. This Court, being an appellate Court, cannot disturb these findings and conclusions, unless there are good reasons to do so. The appellants have not been able, also to show or established that the trial Court failed in its duty of evaluating the evidence and ascribing probative value there for…”
The credibility or otherwise of witnesses, and the ascription of probative value to the evidence of a witness are entirely within the province of a trial Court. An appellate Court cannot, and should not disturb such exercise unless it was not done, or if done, not properly performed before an appellate Court can perform such duty. Therefore, in view of what have been said in the foregoing paragraphs of this judgment, the prosecution has proved its case beyond reasonable doubt against the appellants for the offence of conspiracy, illegal possession of firearms and the offence under the EFCC Act.
On the issue of whether the prosecution proved its allegation of Illegal possession of firearms against the appellants, it also held-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“As earlier pointed out in this judgment, there were no contradictions in the evidence of the prosecution witnesses on the number of guns or firearms generally that where recovered from the appellants. Having admitted being in possession of the guns and or firearms, the offence of illegal possession thereof, have been proved, notwithstanding the evidence of DW1, who testified that the guns were for the protection of their animals. The learned trial Judge assessed the credibility of the witnesses, he accepted and believed their evidence. This Court cannot interfere with such findings and conclusions without good cause to do so.
…In view of the foregoing, the prosecution had proved the allegation of illegal possession of firearms against the appellants who were so convicted. This issue is so resolved. The appeal fails, same is dismissed.”
Obviously, the question of the Court of Appeal re-evaluating the evidence before the trial Court does not come into the equation. The trial Court believed the witnesses called by the prosecution. It found DW1, the only witness called by the defence, unreliable, and it refused to accept or act on his testimony

in their defence.”

The Appellant had contended that Exhibit “H” the whatsapp communications between AVM MAMU and the Defendant authorizing the Defendant to travel to Pakistan and South Africa and to collect estacode from the Contractor whose name is contained in the charge against the Defendant/Respondent remains documentary hearsay and inadmissible in the absence of AVM Mamu who the Respondent stated forwarded all air tickets for his trip to and from Pakistan and South Africa. That lower Court was wrong to have accorded the document probative value.

The law is settled that there is difference between admissibility of document and weight to be attached to it. I call in aid the following decisions of the ultimate Court in the land viz:-
1. U.T.C. NIGERIA PLC V ALHAJI JIA WAHAB LAWAL (2014) 5 NWLR (PART 1400) 221 AT 244 F – G per KEKERE-EKUN, JSC;
2. A.C.N. V LAMIDO & ORS (2012) 8 NWLR (PART 1303) 560 AT 592D per FABIYI, JSC who said:-
“This is so as there is a dichotomy between admissibility of documents and the probative value to be placed on them while admissibility is based on relevance probative value depends not only on

relevance but also an proof. Evidence has probative value if it tends to prove an issue.”

Exhibit “H” tendered by the Defendant was to show that his tickets for the official travel and his estacodes are to be borne by the Contractor who sent the Air Tickets to the Defendant via AVM MAMU into Defendants mail box and his whatsapp. See pages 6 – 7 of the record (Exhibit B) where the Defendant said:-
“During the preshipment inspections of weapons to be delivered, a detailed process of live testing amongst other requirements of storage condition, age of weapon, physical condition are determined to enable acceptance of weapons. This procedure is ensured and a report forwarded before formal procurement. During such inspections, the NAF or the Contractor/Vendor provides basically requirements like visas, air ticket, estacode and allowances and other requirements as the case may be. I participated in the inspection of the weapons to be delivered from Pakistan and also the bombs from South Africa. The air ticket, estacode allowance (and) ware provided to me having stayed for 43 days in all.”

And in his statement on page 8 of

the record of appeal, Exhibit B the Defendant said:-
“In addition to my earlier statement dated 15 Feb. 16, I wish to state that having been nominated by NAF, I was directed to conduct pre-shipment inspection and loading of F-7 in aircraft weapons in Pakistan. I was informed that the contractor was to provide my airticket and estacode allowance. The return airtickets for the 3 consecutive trips to Pakistan in Jan., Feb. and Apr. 2015 sent through my e-mail was provided by their contractor as indicated in attachment E, while estacode allowance was credited to my bank account by the contractor at the end of the exercise in May 2015. However, during questioning, the attachment authorizing the contractor to provide the airticket and estacode allowance for embarking on the official duty to Pakistan could not be found. Accordingly I am returning the estacode given to me by the contractor for the duration of 43 days In Pakistan/South Africa. Likewise I am to forward my request for re-imbursement from the NAF. Also attached as F are delivery notes, air cargo manifest and vouchers for the delivery of the shipment of 4th Sortie delivered in April 2015 to NAF

Makurdi. I wish to state that sometime in March, 2015, I was offered a gift of USD100,000 with First Bank of Nigeria Cheque No. DPL 001604 dated 06/03/15 by the contractor. I did not find It comfortable hence I did not cash it and hereby tendered to you accordingly. Ordinarily, my estacode allowance entitlement is USD450 per day, for 43 days (will) amounts to USD9,350.00 which is equivalent to N3,870,000.00 at a prevailing exchange rates of N200 to one USD at that time. Sgd. 16 Feb. 16”

The Defendant also stated that he returned the N10 Million to enable him be granted administrative bail.

It is therefore a gross misrepresentation by the Learned Counsel to the Appellant to contend that the Defendant did not mention anything about the Contractor being responsible to pay his estacodes to Pakistan and South Africa instead of Nigerian Air Force.

Exhibit “H” emanated from Defendant’s phone showing that he was authorized to travel with the Contractor and that his superior Air Vice Marshal Mamu conveyed authorization to him vide chats through whatsapp. There is nothing inconsistent in the statement of the Defendant vis-a-vis his oral testimony

and Exhibit “H” which was tendered without objection from the prosecution Counsel.
Both sides made use of the document in the course of trial arid in their addresses to the trial Court. The Prosecution never described the document Exhibit “H” as being inadmissible hearsay in the absence of his (Defendant’s) superior being called as a witness.
The learned Counsel to the Appellant is patently wrong in his submissions. The reasons are not farfetched.
1. The document Exhibit “H” relates to the travelling itinery of Defendant as discussed by him and his boss.
2. The document is eminently relevant and admissible because it conformed with Section 84 of the Evidence Act.
3. The Prosecutor did not object to it when it was tendered along Certificate of Compliance by the Defendant.
4. A party who did not object to a document at the point of tendering cannot at appellate level contend that the document is inadmissible unless excluded by provisions of Evidence Act or another Statute. No such exception in this case.
The Appellant is estopped from objecting to the document, now at appellate level. It is outlandish for the Prosecution

to unabashedly contend that Defendants evidence and the document Exhibit “H” has no probative value for reason that he did not call Air Vice Marshal Mamu. See:
1. CHIEF BRUNO ETIM 4 ORS V CHIEF OKON UDO EKPE & ANOR (1983) 3 SC 12 AT 36-38 per ANIAGOLU, JSC who said:-
“It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence – see: CHUKWURA AKUNNE V. MATTHIAS EKWUNO (1952) 14 W.A.C.A. 59), the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission (see; ALADE V. OLUKADE) 2 S.C. 1883 at 188-9 for criminal trials – see: R. V. HAMMOND (1941) 3 All E.R. 318;

V. PATEL (1951) 2 All E.R.29)
Such exceptions would, among others, include an
(i) unregistered instrument required by law to be registered (See: ABDALLAH JAMAL V. NAMIH SAIDI and Another (1933) 11 N.L.B. 86; ELKALI and Another V. FAWAZ (1940) 6 W.A.C.A. 212; IDOWU ALASHE and Others V. ILU and Others (1965) N.M.L.R. 66);
(ii) unsigned deed of grant (or copy or copy of copy thereof) (ABDUL HAMID OJO V. PRIMATE ADEJOBI and Others (1978) 3 S.C. 65;
(ii) unstamped instrument or document requiring to be stamped, unless it may legally be stamped after execution and the duty and penalties are paid (see: ROUT-LEDGE V. MCKAY (1954) 1 ALL E.R. 655 at 856; 1 W.L.R 615 at 617).
The contention as to the admissibility of those exhibits to which objection was not raised is clearly misconceived and entirely without substance.”
2. MUSA NATSAHA V THE STATE (2017) 18 NWLR (PART 1596) 38 AT 67 F – G per M. D. MUHAMMAD, JSC who said:-
“Practitioners must be reminded of this Court’s stand on instances such as In the instant case when in Shurumo V. The State (2001) 196 LRCN 199; (2010) 19 NWLR (Pt. 1226) 73 at p. 90, paras. F-G it

opined thus:-
“When a counsel stands by and allows exhibits to sail smoothly through to become evidence without an eyelid, then it becomes obvious that the counsel is comfortable with the evidence and see reason why he should challenge in its admission.”
3. IFEANYI C. BLESSING VS FRN (2015) 13 NWLR (PT. 1475) 1 AT 34 C – 4 and 34A – G per KEKERE-EKUN, JSC who said:-
“The final issue is the admissibility of exhibit 4 – whether it is admissible under Section 55 of the Evidence Act and whether PW1 was competent to tender it. Before considering the applicability of Section 55 of the Evidence Act, it is important to note that in considering the admissibility of any evidence, whether oral or documentary, the test is relevance. If the evidence is relevant to a fact in issue, it is admissible. The probative value to be attached to the evidence is a different matter. Probative value depends not only on relevance but on proof. See: Torti V. Ukpabi (1984) SCNLR 214: Magaji V. The Nigerian Army (2008) 8 NWLR (Pt. 1089) 338; Ogbuayinya V. Okudo (1979) 6 – 9 SC 32; Dalek (Nig.) Ltd. V. OMPADEC (2007) All FWLR (Pt.364) 204 @ 236, G – H, (2007) 7 NWLR (Pt.

1033) 402; A.C.N. V. Lamido (2012) 8 NWLR (Pt. 1303) 560 @ 592, D – F; U. T. C. (Nig.) v. Lawal (2014) 5 NWLR (Pt. 1403) 221.
There is no doubt that exhibit 4 is relevant to the facts in issue and therefore admissible in evidence. Learned counsel for the appellant has also argued that the document was improperly admitted in evidence because PW1 who tendered it is not the maker and is not an expert in the field of drug analysis. The lower Court dealt extensively with this issue at pages 302 – 303 of the record.
After reproducing the evidence of PW1 in this regard the Court held at pages 303 – 304 as follows:
“I have taken time to reproduce in extensor the office, schedule and actions of the PW1 in the events that culminated in the application for scientific analysis and the issuance and tendering of same by the PW1, to show whether or not he was qualified to tender the said document and whether the trial Judge was right in admitting the same as exhibit: put differently, whether the said document was admissible through the PW1 as exhibit. It can be seen that the PW1 was actively involved in the entire process that brought about exhibit 4, as an

officer of NDLEA, who was in charge of exhibits – seizing, testing, custodying (sic) the same and preparing sample portions for scientific analysis and collecting the result therefrom for keeps and tendering in Court. The PW1‘s legal power and authority to tender the report of the scientific analysis, which was issued to him following his earlier request therefore, can therefore not be questioned by the appellant, on appeal especially as she did not raise any objection to the tendering of the document by the prosecution… It was also not necessary for the forensic expert, who analysed the drugs and issued the report (exhibit 4), to come to Court, in person, to tender the document for it to be admitted. What governs admissibility is relevance and the fact that the document had been pleaded and is properly tendered in the form and by the person it should be produced.”
The above finding, in my view, is unassailable. Firstly, as observed by the lower Court, exhibit 4 was admitted in evidence without objection. Secondly, PW1‘s testimony as to his 14 years experience at NDLEA as an exhibit officer whose schedule includes field testing of

seized drugs, packing, dividing and scaling of such drugs, weighing them and issuing relevant forms for packing and analysis thereof and taking samples of the drugs for forensic analysis was uncontradicted. His meticulous handling of the exhibits in the instant case was also not faulted. It is also not in dispute that it was he who requested for the scientific analysis which resulted in exhibit 4. I agree with the lower Court that PW1 was eminently qualified to tender exhibit 4, it must also be noted that the evidence on record does not support the contention of learned counsel for the appellant that exhibit 4 is the product of an unmarked exhibit.”

The document Exhibit “H” was properly and legally admitted in the proceedings. The learned trial Judge said that much on pages 223 – 234 of the record when the learned trial Judge in his judgment made the following emphatic findings.
“The only document authorizing the trip therefore was the WhatsApp communication between the defendant and AVM Mamu and AVM Beckley in Exhibit H, and so the Court has to place reliance on this exhibit. The defendant, in printing out this chain of communication, complied

with Section 84 (2) (A – D) of the Evidence Act 2011 regulating computer generated documents.
This mode of communication is not a conventional mode, especially on official matters and by Government Agencies, but this is the only indication of an official directive. The contents, especially as regards the ticket for his trip and details of activities engaged in whilst on this duty were verified by subsequent events, in that he did in fact receive his ticket from the travel agency owned by the Contractor and he utilized same for his travels. It is also worthy of note that the prosecution did not object to the tendering of this document and so the Court will rely on same to determine to a certain degree, who bore the cost for the estacode. On the 9th of April 2015, AVM Mamu wrote that the defendant proceeds to Hilton Hotel to see the contractor for the estacode and there is nothing else about the responsibility of the NAF to provide the estacode.
It was expected that the prosecutor would have furnished the Court with evidence that 1) the NAF was expected to provide the travel and estacode allowances, and 2) that the defendant did in another payment for

estacode from the contractor.
It was also expected that AVM Mamu and AVM Beckley or some other official of the NAF should have been invited to lead evidence for the prosecution that the defendant corruptly received the sum claimed from the contractor, especially when the NAF had made adequate provisions for his estacode. They are still in active service and even if they had retired, it still was within the capacity of the Prosecution to have summoned them as his witnesses, I have had a careful look at Exhibit G, the computer print out of the ticket itinerary and confirm that the ticket for the defendant’s journey was forwarded from AVM Mamu’s email account into that of the defendant on the 7th day of April 2015, and this no doubt corroborates the account of the fact that the contractor was to bear the expenses for the travel. It also shows the active involvement of AVM Manu, the coordinating officer in charge of the arrangements for the pre-shipment inspection. The trail of correspondence also shows an accounting of events relayed from the defendant, whilst out on his official duty to his superiors back in Nigeria.” (underlined mine).

The Prosecution did not appeal the findings of lower Court which no doubt is a direct indictment on the Prosecution on the lackadaisical manner it conducted its case without calling the said AVM Mamu to testify for prosecution on the defence postulated and put forward by the Defendant/Respondent.
The Appellant must be taken to have acknowledged the findings of trial Court quoted above as correct. The law remains incontestable that a decision of a Court of competent jurisdiction not appealed against or which an appellate Court has not set aside subsists until set aside. See:-
1. TEMPLE NWANKWO VS FRN (2018) 11 NWLR (PART 1631) 397 AT 412 A – D per RHODES-VIVOUR, JSC who said:-
“There is in existence the Corrupt Practices and Other Related Offences Act of 2000. In 2003 the National Assembly promulgated the Corrupt Practices and Other Related Offences Act of 2003. It has as its commencement date 18 May 2003. In Section 55 supra the Corrupt Practices and Other Related Offences Act, 2000 was repealed. See Laws of the Federation Vol.3 chapter C31 – 1. Four days after 18 May 2003, that is on 21 May, 2003 a Federal High Court Abuja in suit No.

FHC/ABJ/CS/93/2003. Hon. BaIa Kaoje & 5 Ors. V. The National Assembly of the Federal Republic of Nigeria & 13 Ors, declared the ICPC Act of 2003 passed by the National Assembly in violation of a subsisting Court order null, void and of no effect. and revalidated tile ICPC Act of 2000.
In the absence of an appeal from the decision of the Federal High Court that Ruling remains inviolate until set aside. The law in force is the Corrupt Practices and Other Related Offences Act 2000 and not the Corrupt Practices and Other Related Offences Act 2003. See F.R.N. V. Wabara (2013) 5 NWLR (Pt. 1347) p.331: A.-G., Ondo V. A.-G., Federation & 35 Ors (2002) 9 NWLR (Pt. 772) p.222: Egharevba V. F.R.N. (2016) 2 SC (Pt. III) p.166: (2016) 10 NWLR (Pt. 1521) 431.“
2. OLAIYA OPEYEMI VS THE STATE (2019) 17 NWLR (PART 1702) 403 AT 434 E -F per EKO, JSC who said:-
“The evidence on which the conviction of the appellant was predicated include his confessional statements – exhibits J, 11 & K. The voluntariness of the making of these statements was subjected to trial – within – trial. The learned trial Judge, upon the, trial – within – trial, ruled

conclusively that the extra-judicial statements in exhibits J, 11, & K were made voluntarily. That decision has not been challenged. It subsists and remains binding as between the prosecutor and the appellant. In the absence of any challenge, by way of appeal, to the decision that exhibits J, 11 & K were voluntarily made by the appellant, he is deemed or taken to have accepted the decision.”

The Respondent has sufficiently put forward a very potent defence and answer to the criminal allegations of gratification levelled against him and the lower Court was right and correct in its finding that Exhibit “H” enures in favour of Respondent Exhibit “H” and other surrounding pieces of evidence from Respondent and prosecution’s witnesses particularly PW1 and PW3 afforded the Respondent a complete defence to the one Count Charge. See:-
1. THE STATE VS ADAMU ISAH (2019) 1 NWLR (PART 1652) 139 AT 156 C – D per NWEZE, JSC who said:-
“This must be so for in a criminal trial the Court is bound to consider not only those defences specifically raised by the accused but also all such evidence and defences which favourably

avail him, Adebayo V. The Republic (1967) NMLR 391; (1967) SCNLR 428; Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635; Oguntolu V. The State (1996) 2 NWLR (Pt.432) 503; Malam Zakari Ahmed V. The State (1999) 7 NWLR (Pt.612) 64), 679 and 681; Nwankwoala V. State (2006) 4 NWLR (Pt. 1000) 663, 670.”
Issue 1 is hereby resolved against the Appellant.

With regard to issue two, the bone of contention is whether in view of the fact that it is the Federal Government that pays estacodes to its officials who are on official trips outside the Country, the Respondent has any right to collect estacode from MR. HIMMA ABOUBAKAR of Societe D’ Equipments Internationaux Nig. Ltd, a Contractor engaged by Office of Security Adviser for purposes of purchasing arms or armament for the Nigerian Air Force.

The high point of the Appellant’s submission can be found on page 9 paragraph 4.25 whereat the learned Counsel to the Appellant argued thus:-
“4.25. My Lords the trial Court misplaced the burden on the prosecution to prove a fact which the Respondent had admitted. He stated that it is the Government that pays DTA and went further to state that

however, in certain cases, by agreement of the parties the other contracting party will pay for the DTA of Government officials. The burden then lies on him to prove the existence of the exception he alleged which burden he failed to discharge.”

Now from the way the 2nd issue was couched by the learned Counsel to the Appellant, it is the bounden duty of the Prosecution and onus of proof is on the prosecution to show clearly and beyond doubt in this case that there was no “express permission and or understanding…” between Appellant and the Respondent that Defendant’s estacode would be paid by the Contractor having regard to the positive evidence on record that all the Air Tickets used by the Respondent for the entire duration of the 43 days duty and official trips to Pakistan and South Africa were fully paid for by the Contractor who sent the Air Tickets through Air Vice Marshal Mamu who in turn sent some to the mail/whatsapp of the Respondent.

If there was no understanding or express permission to accept the Tickets from the Contractor and payments for Respondent’s hotel bills from and by the Contractor, why was the Respondent told by the

investigators not to bother refunding the equivalent amount of money representing the value of the Air Tickets? The Appellant did not deny that they sent the Respondent on official errands bordering on the Security of the Nation. He was sent to inspect the arms/armament the Contractor was engaged by Office of National Security Adviser to supply to the Nigerian Air Force of which the Respondent was the Director of Armament, before their shipment or importation into the Country for the use of the Air Force in the fight against insurgents.

There was no scintilla of evidence from the Prosecution witnesses that the Appellant was paid any monies in form of DTA/ESTACODE or upkeep allowances in respect of or pertaining to the official trip undertaken by the Respondent. The Appellant would appear to be playing the ostrich in accusing the Respondent of taking or receiving his estacodes from the Contractor bearing in mind the contents of Exhibits C, D, H, J and J1 and the oral evidence of the Respondent all of which exonerated him of the Charge against him (Respondent).

Contrary to the submissions of the Appellant that the Respondent admitted that he had no

contract agreement showing that it was the contractor that would bear his expenses the Respondent tendered Exhibits H, J and J1 to show that there is nothing extraordinary in asking the contractor to pay for the official’s DTA/Estacode because there have been instances in the past where the contractor(s) bore such DTA/Estacodes expenses for such official trips by Air Force Officials.

There is no onus on the Respondent to establish his innocence. It is the bounden duty of the prosecution to establish the guilt of the Respondent.
It is beyond argument that the burden and standard of proof in any criminal proceedings is squarely on the prosecution. This is statutory provided in Section 135(1) (2) and (3) of the Evidence Act 2011 as follows:-
“135(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongly act, is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution, such doubt shall be resolved in favour of the accused person. See Famakinwa V. The State (2013) 7 NWLR (Pt. 1354) 597; Kala V. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje V. The State (1976) All NLR 139.”

The Appellant included the name of Himma Aboubakar in the charge as the giver of gift to the Respondent. Notwithstanding that his name is thus embedded in the charge the said Aboubakar was not called as a witness by the Prosecution. The Respondent tendered documents to show that he was authorized by his superior officer Air Vice Marshal Mamu to meet the contractor for his travelling expenses. The documents were tendered as Exhibit “H” (pages 2 – 3) without objections from the prosecution. The said AVM Mamu was also not called as a witness by the prosecution in order to displace the oral and documentary evidence proffered by the Respondent in his offence. PW1 informed the

Court under cross examination on pages 167 – 168 of the record of appeal as follows:
DC – It is clear that the contractor paid the evidence for the pre -shipment inspection?
PW1 – That is what the Defendant wrote in his statement.
PW1 – Yes, we contracted the contractor and he is still at large.
The contractor is at large.
PW1 – Yes, I dont have any other documents or statements other than what is stated here.
Statement of 16/2/16 line 7 – the contractor offered a cheque of $100,000 to the Defendant and he didnt collect it because he felt he didnt work for it.
PW1 – Yes, he gave me a copy of that cheque. It is the copy of the 1st bank.
PC – says photocopy Section 88.
The cheque that he presented as a dollar cheque, was a blank cheque as his name was not written on it. And the total money he was supposed to have been paid as estacode is N3,870,000.
DC – So the 10 Million he received was far above that he paid for loading of the equipments?
Answer – I am not aware that he made payment.
PW1 – I dont know who made payment. Based on the account statement which we analysed,

this is the only payment paid in by contractor and Nigeria Air Force.
The Defendant confirmed that the Nigeria Air Force was supposed to make the payment of estacode and that he was going to process that through the Headquarter Nigeria Air Force and our investigations did not extend to his personal dealings with the Nigeria Air Force. We are not aware that he was paid any money as estacode.
PW1 – Yes, I am entitled to be paid estacode by my agency
PW1 – Yes, payment of estacode is an entitlement and right.”

On pages 174 under cross examination PW2 answered as follows:
“DC – Aboubokar Himma where is he?
Answer – The said contractor was contracted via phone and we requested his presence at the commission and since then, he has been nowhere to be found because he is not a Nigerian but from Niger Republic.
PW2 – Yes, up till today he has not given his statement to the EFCC.
PW2 – The only reason the Defendant is charged is because by virtue of his position then, where he was supervising the said contractor and the fact that various payments made to the contractor were diverted.
PW2 – No, it is not correct that the

only person that can state the reason for this money is Himma.
PW2 – Yes, Himma didn’t tell us that he paid N10 Million for gratification.”

Under examination-in-chief on page 175 of the record PW3 said at lines 7 – 32 as follows:
“We contact Aboubakar Himma on phone to ask the reason why N10 million was transferred from his account to Defendant’s account and he couldn’t give satisfactory reason. This prompted the team to invite the Defendant.”

PW3 also confirmed that in respect of the contract which took Respondent out of the Country for 43 days to Pakistan and South Africa was performed and all supplies made. That they have not been able to arrest the contractor and did not want to charge him in absentia. PW3 also said that there is no document from Nigerian Air force to show that Respondent was paid estacode for the 43 days.

All the above are the pieces of evidence falling from the lips of the prosecution Witnesses. To crown it all, PW2 said Himma Aboubakar did not tell the investigation team that he paid the N10 Million for gratification while PW3 the team leader spoke to Himma Aboubakar on phone but he (Himma)

could not give satisfactory reason yet the prosecution did not call Himma Aboubakar as prosecution witness even though the prosecution were in phone contact with him.

The pieces of evidence given by the prosecution witnesses have left much to be desired. They do not really incriminate the Respondent. The evidence is full of gaps and doubts which ought to be resolved in favour of the Respondent as was done by the learned trial Judge. See the cases of:
1. AKEEM AFOLAHAN VS. THE STATE (2018) 8 NWLR (PART 1621) 223 at 243 B – H per BAGE JSC who said:
“A critical view of this appeal shows that apart from the confessional statement of the appellant (exhibit “Q”), which is challenged for not being voluntary, there is no direct or circumstantial evidence by either PW1, PW2, PW3 or PW4 suggesting that the appellant agreed or conspired with anyone to commit an unlawful purpose. More worrisome, the alleged or suppose “Principal Actor” who was earlier arrested was later released without any charge being brought against him. What is the effect of all these?
The above, in effect, casts serious doubts on the guilt of the appellant. And, where

there is or are doubts, as in this case, the law is settled that such must be resolved in favour of the suspect, the appellant in this case. Doubts, as in this case, must be necessarily be resolved in favour the appellant in line with the tradition of this Court. In the case of Oforlete V. The State (2007) 7 NWLR 86 at 106, (2000) 12 NWLR (Pt. 681) 41 at 436. Achike, JSC., (as he then was) observed that, doubt (referring to doubt as to the possibility of the appellant committing the offence) must be resolved in favour of the appellant where the allegation of his offence has not been proved beyond reasonable doubt. This Court per Wali, JSC, (as he then was) held in the case of Chukwu V. The State (1996) 7 NWLR (Pt. 463) 686 at 701 G – H as follows:
“Where prosecutions evidence is found to be contradictory on a material issue, the Court should give the benefit of that doubt to an accused person that stems from the non- credibility of such evidence and discharge and acquit him.”
This Court had amplified the coordinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the

prosecution who should prove such fact beyond reasonable doubt. In criminal cases, any doubt, as to the guilt of the accused arising from the contradictions in the prosecution’s evidence of vital issues must be resolved to the benefit of the accused. See Ahmed V. The State (1999) 7 NWLR (Pt. 612) 641 at pg. 673.
The law demands that, irrespective of sentimental and other subjective considerations, we must always step forward, to resolve doubt on the guilt of an accused in favour of the accused, the appellant in this case as established and reconfirmed in several cases, any doubt, as to the guilt of the accused arising from the contradictions in the prosecution’s evidence of vital issues must be resolved to the benefit of the accused. See Ahmed V. The State (1999) 7 NWLR (Pt. 612) 641 at pg. 673.
The law demands that, irrespective of sentimental and other subjective considerations, we must always step forward, to resolve doubt on the guilt of an accused in favour of the accused, the appellant in this case as established and reconfirmed in several cases not the least the cases of Kalu V. State (1988) 4 NWLR (Pt. 90) 503; Ikemson V. State (1989)

3 NWLR (Pt. 110) 455; Nnolim V. The State (1993) 3 NWLR (Pt. 263) 569.
In concluding this judgment, I wish to reiterate as I have pointed above, there arc obvious gaps, lacuna and seemingly irreconcilable doubts in the proceedings leading to the trial and conviction of the appellant, both at the trial Court and at the Court below us. To begin to enumerate them one after the other would be tautological having sufficiently amplified those instances above.”
2. OLADIMEJI MOHAMMED EKUN V. FRN (2019)13 NWL (PART 1689) 326 at
“Exhibits 11 – 14, extra-judicial statement of the 1st accused DW11, offering explanations and defences to the charges of criminal misappropriation, were tendered and admitted in evidence through the PW2. They form part of the prosecution’s case, charge of criminal misappropriation. The effect of exhibits 11 – 14 on the prosecution’s case is that the prosecution had thereby offered and placed before the trial Court two versions of the same transaction one inculpatory and the other (exhibits 11-14) exculpatory. In Paul Ameh V. The State (1978) 6 -7 SC 27 at 36, this Court made it clear that

the prosecution would have failed to prove the guilt of the accused person beyond reosonable doubt if they put before the Court two versions of the same incident or transaction. I am aware that this Court in Igbi V. The State (2000) 2 SCNJ 63 at 73, (2000) 3 NWLR (Pt. 648) 169 stated also that when the statement contains both admissions and denials the prosecution is entitled to use the admissions as well. In the Igbi’s case the accused denied that he participated in the killing of the deceased. He, however, admitted that he was present at the scene of crime. The admission had thus corroborated the evidence of the prosecution witnesses that fixed the accused to the scene of crime.
In the instant case, exhibits 11-14 contain outright denials of the suggestion that the accused dishonestly misappropriated the sums of money the subject of three charges. They do not admit the criminal misappropriation charged. They are at variance with the whole trend of the prosecution’s case. The contradiction is therefore material and it casts reasonable doubt on the prosecution’s case, which doubt the two Courts below ought to have resolved in favour of the

accused/appellants: Onubogu V. The State (1974) NSCC 358. The two Courts below failed to heed the injunction that when there are material contradictions in the prosecution’s case the Court cannot pick and choose which account to believe and which account to disbelieve. Boy Muka V. The State (1976) 10 SC 305.”
FRN V. THOMAS ISEGHOHI (2019) 12 NWLR (PART 1685) 154 H to 179 A – E per PETER- ODILI JSC who said:
“Indeed, from the findings of the Court of Appeal and the ensuring conclusion, what comes to light is that an accused person cannot be convicted on what he was not charged with and no evidence in support such as the case in hand where there was no count in the charge on misappropriation of funds or financial recklessness or mismanagement ineptitude. Rather the charge on Money Laundering and Advance Fee Fraud and while the elements of financial recklessness or misappropriation or management ineptitude were the evidence led by the prosecution and so it cannot be sold the offence charged were made out for which a conviction can be secured, as the appellant’s counsel urges the Court to do. This goes against the grain of what this Court had

stated in Abidoye V. FRN (2015) NWLR (Pt. 1399) 30 at 55 – 56 thus:
“Once a charge is laid, it is deemed that all the ingredients included in the particulars are needed to prove the charge and any ingredient omitted is not necessary. The prosecution cannot default in proving any ingredient included in the particulars of the offence charged, nor can he offer proof of an ingredient omitted in the particulars of the offences.
Having considered what the Court below did in its findings and the conclusion and decision reached, there is no gainsaying that none of the ingredients of money laundering or advance fee fraud was proved by the prosecution and I acknowledge that the Court below was right in setting aside the decision of the trial Court and on its part upholding the no-case submission.
This appeal lacks merit and along with the well articulated lead judgment, I dismiss the appeal.” (underlined mine)
The prosecution witnesses expressed doubts about the case against the Respondent. They do not know what the N10 million was meant or paid for. The Respondent both in his statement Exhibits B arid H and oral testimonies gave adequate and

convincing explanation for the amount paid into his account.
In any event, the Appellant was not charged for failing to obtain express permission and or understanding before receiving estacodes from contractor of his employer. The subject matter of ground 2 of the appeal to which issue two was tied relates to findings of the lower Court to the effect that Appellant failed to establish that the Respondent was paid estacode by NAF and he, Respondent, still went ahead to take another payment in form of estacode from the contractor. Surely there is a gross misconception on the Prosecutors part as what the lower Court decided and the issue formulated from ground two. In all, I have no doubt in my mind that issue two ought to be resolved against the Appellant. I hereby resolved issue two against the Appellant.

On issue 3 as to whether for it to qualify as gratification, the gift must have been sought for to influence the performance of a public duty by the Respondent, the Learned Counsel to the Appellant relied on the amended charge against the Respondent which reads:
“That you, AVM JOHN ADENIYI KAYODE-BECKLEY whilst serving as Director of Armament,

Nigerian Air Force, sometime in 2015 at Abuja within the jurisdiction of this Honourable Court did corruptly accept a gift in the sum of Ten Million Naira (N10,000,000.00) from one Mr. Himma Aboubakar of Societe D’ Equipments Internationaux Nig. Limited, a contractor with the Nigerian Air Force in Performance of your official act and you thereby committed an offence contrary to Section 17(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17 (c) of the same Act.”

I am of the view that the onus was on the Appellant to prove the ingredients or elements of the one count charge which I believe are the following:
1. That the Respondent is/was a Public Officer
2. That he corruptly accept a gift in the sum of N10,000,000.00 from an individual or corporate entity.
3. That the gift was an inducement for doing, forbearing to perform official duty or having been accepted to do or refrain from performing his official duty.
The ingredients of the offence must be cumulatively proved or established. The burden is not on Defendant to prove the elements of the offence. The prosecutor must first establish prima

facie that the Defendant committed the offence laid against him before evidential onus of showing doubts in the prosecution’s case shifts to the Defendant. See the case of PROF BUKAR BARABE VS FRN (2019) 1 NWLR (PART 1652) 100 at 124 H to 125 A – H where my Lord KEKERE- EKUN, JSC held as follows:
“The Position of the law, which remains constant and inviolable, is that in order to secure a conviction in criminal proceedings, the prosecution has the onerous burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 (1) & (2) of the Evidence Act, 2011; Igabele V. The State (2006) 6 NWLR (Pt. 975) 100; Iko V. The State (2001) LPELR – 1480 (Sc) @ 48A – B, (2001) 14 NWLR (Pt. 732) 221; Lori V. The State (1980) 8-11 SC 81. This is in line with the presumption of innocence guaranteed to any person who is accused of committing a crime, as provided for in Section 36(5) of the 1999 Constitution, as amended. The burden remains on the prosecution throughout the trial and never shifts. However, where the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt shifts to the

defendant. See Section 135(3) of the Evidence Act, 2011… In a few limited circumstances, such as where the accused person raises a defence of alibi or insanity, he has the evidentiary burden of adducing such evidence as would raise a reasonable doubt as to his guilt. This is because the facts constituting the defences are strictly within the accused person’s knowledge. See: Ndukwe V. The State (2009) 7 NWLR (Pt. 1139) 43: Akpan V. The State (1991) LPELR – 380 (SC) at 17 -18, F – C, (1991) 3 NWLR (Pt.162) 656: Madjemu V. The State (2001) 13 NWLR (Pt. 730) 375; Isah V. The State (2017) LPELR – 43472 @ 28 – 29, F – E: (2018) 8 NWLR (Pt.1621) 346. His failure to testify, for example, cannot result in a conviction. The prosecution must adduce cogent and compelling evidence to discharge the burden of proving its case beyond reasonable doubt. Any doubt created in the mind of the Court must be resolved in favour of the accused person. See: Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349; Aiguoreghian V. The State (2004) 3 NWLR (Pt. 860) 367; Adie V. The State (1980) NLR 323: Shehu V. The State (2010) 8 NWLR (Pt. 1195 112.
In order to establish the

guilt of an accused person’s beyond reasonable doubt, the prosecution must prove all the essential elements of the offence or offences with which he is charged. The Court must be satisfied that the totality of the evidence led supports the particulars of the offence as charged. See: Alor V. The State (1997) 4 NWLR (Pt 501) 511; Nwaturuocha V. The State (2011) 6 NWLR (Pt. 1242) 170; Orji V. The State (2008) 10 NWLR (Pt. 1094) 31; George V. FRN (Supra)
I shall now apply the principles to the facts of this case. Count 5 and 6 of the charge were reproduced earlier in this judgment. By the said counts, the Chad Research Institute to confer unfair advantage on his son, Adam Bukar Bababe, by awarding a retainership contract for the maintenance of the Institute’s computers and approving the renewal of the said retainership contract in favour of Cyber Tech. Nig. Ltd. a company allegedly owned mainly by his said son. He is thereby alleged to have committed an offence contrary to and punishable under Section 19 of the Corrupt Practices Act. Section 19 provides;
“Any public officer who uses his office or position to gratify or confer any

corrupt or unfair advantage upon himself or any relation or associate of the public officer or any other public officer is guilty of an offence and is on conviction liable to imprisonment for five (5) years without option of a fine.
The essential elements of the offence are:
1. That the accused person is a public officer.
2. That he used his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of his or upon any other public officer.”

It must also be noted that an accused is entitled to rely on the gaps or lacuna in the prosecution’s case where as in this case there are a lot of pieces of evidence both oral and documentary pointing to the innocence of the Respondent. A lot of doubts have been created in prosecution’s case as pointed out under issues 1 and 2 which have been resolved against the Appellant.

Even going by the ingredients of the offence as told or stated in paragraph 4.32 page 10 of the Appellant’s Brief of Argument and his further argument under paragraph 4.33 viz:
4.32. It is our humble submission my noble Lords that what the

prosecution need to prove in a charge under Section 17(a) of the law are the following:
a. That the Defendant corruptly accepted the gift
b. That the Defendant accepts or obtain the gift for himself or for any other person.
c. That the Defendant accepted the gift in the course or for discharging his official duty.
d. That the gift is for an inducement or reward for doing, forbearing to do or for having done or forborne to do, any act or thing.
4.33. My lords there is nowhere in the section under which the Respondent was charged that requires prove of a request/demand by a per charge under the Section as was held by the Honourable trial Court. Suffice it to be shown that the gift accepted was to influence a performance of official duty. It must not have been asked for. What the law punishes with the greatest respect is the receipt of such a gift. The giving must not have been prompted by a demand by a defendant and we respectfully urge this honourable Court to so hold”, the prosecution failed to establish the one Count Charge.

The Appellant needs to be reminded of the command or dictates of Section 135 of the Evidence Act 2011

and Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended all of which have been abundantly interpreted or explained in numerous cases. Suffice to refer to the following:
1. AKEEM AFOLAHAN V. THE STATE (2018) 8 NWLR (PART 1621) 223 at 239 G – H to 240 A – C per BAGE JSC who said: “The offence for which the appellant is charged is a very serious one, and by virtue of Section 135(1) of the Evidence Act 2011, the offence must be strictly proved by cogent and convicting evidence that leaves no iota or doubts or skepticism in the minds of the parties and members of the public, and I dare say this Court. The section provides:
“135. Standard of proof where commission of crime in issue; and burden where guilt of crime etc. asserted
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of act is or is not directly in issue in

the action.
It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish his case beyond reasonable doubt. It must however be noted that proof reasonable doubt does not mean proof beyond all shadow of doubt, I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo V. Commissioner of Police (1992) LPELR- 3528 (SC), (1992) 4 SCNJ 113; (1992) 8 NWLR (Pt. 27) 36; Ogundiyan V. The State (19991) LPELR- 2333 (SC), (1991) 3 NWLR (Pt.181) 519; Alonge V. IGP (1959) 4 FSC 203; (1959) SCNLR 516; Onubogu V. The State (1974) 9 SC 1 at 20: Babuga V. The State (1996) LPELR- 701 (SC), (1996) 7 NWLR (Pt. 460) 279.”
2. UCHECHI ORISA VS. THE STATE (2018) 11 NWLR (PART 1631) 453 at 466 C – D per GALUMJE, JSC who said
“The law is settled that if the commission of a crime by a party to any

proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Akpan V. The State (1990) 7 NWLR (Pt. 160) 101; Adamu V. A – G Bendel State (1986) 2 NWLR (Pt. 22) 284. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with criminal offence shall be presumed innocent until he is proved guilt. It is therefore plain that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi V. The State (1993) 7 NWLR (Pt. 307) 511 at 531 paras. A-C; Solola V. The State (2005) 5 SC (Pt. 1) 135; (2005) 11 NWLR (Pt. 937) 460; Bakare V. The State (1987) 1 NWLR (Pt. 52) 579. (underlined mine)
The prosecution failed to prove any of the ingredients of the offence as set out in the

charge by the evidence of its witnesses at the trial Court. The money found in Defendant’s account has been positively explained as encapsulating his DTA/Estacodes and extra expenses incurred at inspection, loading and transportation of the armaments to Nigeria. The Defendant also performed his duties of receiving or certifying that the goods were dully supplied and received by his employer. There is no scintilla evidence to show that he was gratified, induced or influenced by the N10,000,000.00 paid by the Chief Executive of the said Contractor. The finding of the trial Court is therefore quite in order and in tandem with the provision of Section 17(a) of the Corrupt Practices and Other Related Offence Act, 2000 coupled with provisions of Section 135(1) (2) of the Evidence Act (2011). The charge was not proved. The prosecution failed to prove that the N10,000,000.00 was or is a gift or gratification accepted to make Respondent do or refrain from performing his official or public duties.
Issue 3 is also resolved against the Appellant.

In respect of Issue 4 which has to do with whether the learned trial Judge inappropriately evaluated the

evidence before him when he held that the Respondent earned and rightly received the sum of N10 Million as estacode from Contractor of his employer. The learned Counsel to the Appellant reeled out the pieces of evidence given by Prosecution witnesses. He dwelt heavily on the statement made by the Respondent on 16/2/2015. Paragraphs 4.42 – 4.45 bring out clearly his surmise as follows:-
“4.42 The statement of the Respondent made on 16th February, 2015 reads in part;
“having been nominated by NAF I was directed to conduct pre-shipment inspection and loading of F -7 NI aircraft weapons in Pakistan, I was informed that the contractor was to provide my air ticket and estacode allowance. The return air ticket for the 3 consecutive trips to Pakistan in Jan., Feb. and Apr., 2015 sent through my email was provided, by the contractor as indicated in attachment E, while estacode allowance is credited to my bank account by the contractor at the end of the exercise in May, 2015. However, during questioning, the document authorizing the contractor to provide the air ticket and estacode allowance for embarking on the official duty to Pakistan could not be

found. Accordingly, I am returning the estacode … me by the contractor for the duration of 43 days In Pakistan/South Africa. Likewise I am to forward my request for re-imbursement from the NAF… Ordinary, my estacode allowance entitlement is USD450 per day, for 43 days amounts to USD19,350.00, which is equivalent to N3,670,000.00 at a prevailing exchange rate of N200 to one USD at that time”.
443 Further to the above, the Respondent stated in his statement of 17th February, 2015 thus:
“I have also brought a UBA draft No. 07592588 for the sum of N10 Million in favour of National Security Adviser Funds Recovery. The amount is the estacode allowance paid to me along with air tickets and sundry requirements for preshipment inspection.”
4.44 We humbly submit my Noble Lords that the above statement of the Respondent is a confession to the crime against him and he willingly decided to strike the refund of the sum N10 Million to the Federal Government.
4.45 This also brings us My Lords to the effect of a confession in a criminal trial. Confession in criminal procedure, with respect My Lords, is like admission in civil procedure it is the

strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence comes out of the “horses’ mouth”, who is the accused person. There is no better evidence and there is no need for further proof since what is admitted needs to further proof I refer My Lords to the case of AKPA V. THE STATE (2008) 14 NWLR (Pt. 1106) Page 72.”

The Appellant’s learned Counsel grossly misconceived the portion of the statements quoted as made by the Respondent which were all tendered as Exhibit. There are three statements in all.

The learned Counsel also deliberately misconstrued or interpreted the portions of statements made on 16/2/16 and 17/2/2016 by treating them as Confessional Statements which according to him require no further proof. The learned Counsel to the Appellant to my mind cannot be right in law.
Section 28 of the Evidence Act provides:-
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
A confessional statement must admit of the crime or the offence charged

or contained in the charge against an Accused or Defendant in a criminal matter. The alleged confessional statement must encapsulate or contain the ingredients or elements of the offence charged. See:-
1. FELIX OKPAKO VS THE STATE (2018) 9 NWLR (PART 1624) 213 AT 226 H TO 227 A per AKA’AHS, JSC.
2. OLUFEMI BABATUNDE V THE STATE (2018) 17 NWLR (PART 1649) 549 AT 565 C – D where OKORO, JSC said:-
“The law is trite that a confessional statement is admissible if is direct, cogent, positive and relates to the acts of the accused person, knowledge and intention, stating and or suggesting the inference that he committed the crime charged. See Solomon Thomas Akpan V. The State (1992) 6 NWLR (Pt. 2648) 439, Yesufu V. The State (1976) 6 SC 167, Obasi V. State (1965) NMLR 129.”

The statement made on 16/2/2016 by the Respondent reads:-
“In addition to my earlier statement dated 15 Feb. 16. I wish to state that having been nominated by NAF, I was directed to conduct pre-shipment inspection and loading of F-7 in aircraft weapons in Pakistan. I was informed that the contractor was to provide my airticket and estacode allowance. The return

airtickets for the 3 consecutive trips to Pakistan in Jan., Feb. and Apr. 2015 sent through my e-mail was provided by their contractor as indicated in attachment E, while estacode allowance was credited to my bank account by the contractor at the event of the exercise in May 2015. However, during questioning, the attachment authorizing the contractor to provide the airticket and estacode allowance for embarking on the official duty to Pakistan could not be found. Accordingly, I am returning the estacade given to me by the contractor for the duration of 43 days in Pakistan/South Africa. Likewise I am to forward my request for re-imbursement from the NAF. Also attached as F are delivery notes, air cargo manifest and vouchers for the delivery of the shipment of 4th Sortie delivered in April 2015 to NAF Makurdi. I wish to state that sometime in March, 2015, I was offered a gift of USD100,000 with First Bank of Nigeria Cheque No. DPL 00155604 dated 06/03/15 by the contractor. I did not find it comfortable hence I did not cash it and hereby tendered to you accordingly. Ordinarily, my estacode allowance entitlement Is USD450 per day, for 43 days (will) amounts to

USD19,350.00 which is equivalent to N3,870,000.00 at a prevailing exchange rates of N200 to one USD at that time. .Sgd. 16 Feb. 16.”

The additional statement made on 17/2/2016 by Respondent is also as follows:-
“In addition to my earlier statement dated 16/2/2016 I wish to state that having explained in details the aircraft weapons and small arms and ammo received by the NAF which is Director of Armament, I hereby submit a summary of the details as attachment. I am also submitting the contract agreement between the NAF and Messrs GIDS of Pakistan for supply of aerial bombs, fuses and cartridges for NAF F-7 NI aircraft in 2015. I have also brought a UBA draft No. 07592588 for the sum of N10 Million in favour of National Security Adviser Funds Recovery. The amount is the estacode allowance paid to me along with airtickets and sundry requirements for preshipment inspection and loading of F7-NI aircraft weapons conducted from Pakistan for 43 days period. Also attached are the Visas issued in respect of the official duty for which the estacode allowance was paid to me. The payment of estacode allowance, airtickets and sundry allowance were made by

the Contractor Messrs SEI, I am hereby returning this money because NAF ought to have provided me with estacode allowance, airticket and other sunder allowance for the official duty (and not the) the sum of N10 Million was transferred into my UBA Account by Societe D’ Equipment on 15 May 2015 while the airtickets was sent to my e-mail address box on 8 Jan 2015” sgd, 17/2/2016” (underlined mine)

A calm reading of the entire statements (two of them) glaringly show that the Respondent never admitted that he was given a gift of N10 Million by Himma Aboubakar mentioned in the Charge against Respondent.

The Respondent was consistent that the N10 Million represents his estacode allowance and additional expenses incurred in respect of preshipment inspection and loading.

The dominant ingredient of the offence charged was that “Respondent sometime in 2015 did corruptly accept a gift in the sum of Ten Million Naira (N10,000,000.00) from one Mr. Himma Aboubakar of Societe D’ Equipments Internationaux Nig. Ltd., a Contractor with the Nigeria Air Force in performance of your official act…”

The Respondent did not accept the above

quoted portion of the Charge. He maintained that it has been the practice in the past to take estacode from Contractor while on inspection of Armaments before they are shipped or brought into Nigeria.

It is of paramount importance to note that the Appellant did not charge the Respondent with offence of collecting estacode from a Contractor with the Nigerian Air Force. The Contractor with the Nigerian Air Force is a Registered Company – Societe D’’ Equipments Internationaux Nig. Ltd. He (Respondent) was also not charged for receiving estacodes from Himma Aboubakar which the Respondent was alleged to have corruptly accepted as a gift.

The prosecution is under a duty to effectively link the Respondent with commission of the offence prohibited in Section 17(1)(a) of Corrupt Practice and Other Related Offences Act 2000. This they have failed to do. Himma Aboubakar who was alleged in the charge to have given the gift was not called even though the Prosecution witnesses had telephone conversation with him.

PW2 stated on 174 of the record that the only reason the Defendant was charged was because by virtue of his position then, where he was

supervising the said Contractor and the fact that various payments made to the Contractor were diverted.” And that Himma did not tell them (Investigators) that he paid N10 Million for gratification. The same PW1 and PW3 also said the said Himma Aboubakar did not say he paid the N10 Million as gratification.

The Respondent was/is not charged for misappropriation of funds or diversion of any money relating to the aforesaid contract. The Prosecution’s evidence clearly exonerates the Respondent.

The Appellant also sought to rely on the fact that the Respondent returned the amount in UBA draft to an account in favour of National Security Adviser Funds Recovery therefore he has admitted the charge. This is patently false. The Respondent in the said statement made on 17/2/2016 quoted by Appellant in his paragraph 4.43 page 13 of Appellant’s Brief stated emphatically that “The amount (N10 Million) is the estacode allowance paid to me along with the airtickets and sundry requirements for preshipment inspection.”

Further on page 191 – 192 of the record, the Respondent explained in his evidence while answering questions under cross

examination by the Prosecution as follows:-
“In statement – allowance was N3.7, I said I spent 43 days but the 3.5 was to cover for $450 per night but the calculation was $600 per dieni. The cost for other expenses incurred was supposed to cover all the monies he paid.
I told them there are other expenses covered by the money but they said they are only interested in the return of N10 Million.
Aboubakar Himma underpaid me. My entitlements are more than N10 Million. I have not even ascertained the risk I took but I was only interested in my entitlements and I didn’t Induce him.
Exhibit G – There were 4 trips one to South Africa and 3 trips to Pakistan so there were 4 tickets issued.
This document bearing the ticket has Aboubakar Himma and the cheque he paid me are the documents have in relation to him. I delivered all of them to the EFCC (In regard to Pakistan).
Pc – Exhibit B – Where did you say you gave EFCC confirmation of deliveries of Pakistan.
Dw1 – Yes, at page 3
The NSA awarded to SDI – I observed that they did not buy fuse. We had no Air Craft delivery explosives. So I called CAS and told him of the

essential components.
The only option is from CAS to CAS Pakistan while GID. I don’t know.
This is verbatim as guided by the EFCC investigator and I should do it this way, so that if I go to the Air Force they would pay me (NAF).
I believe that day there was audio conversation I didn’t return the money of my own volition but to secure an administrative bail.
AVM – Mamu is facing trial.
Objection – irrelevant.
Most of these communication were when I was out of country, they are follow up actions communication in whatsApp.
Pc – That is all.”
(underlined mine)

I have carefully read the record of appeal particularly the evidence of prosecution witnesses and the Defendant. I have also read the documentary evidence tendered and relied upon by the parties and the arguments contained in the Appellant and Respondents’ Briefs.

I am of the firm view that the findings of the learned trial Judge cannot be faulted. I will not interfere with them.
Consequently the Appellant’s appeal lacks merit and it is hereby dismissed.
The judgment of the High Court of the Federal Capital Territory Abuja delivered by

HON. JUSTICE A. A. I. BANJOKO on the 6th of July, 2017 IS HEREBY AFFIRMED.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA.

My learned brother has elaborately dealt with all the issues raised in this appeal. I am in agreement with the reasoning and the conclusion that this appeal is lacking in merit.
I too do dismiss this appeal and I abide by the consequential orders made therein.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree.

Appearances:

CHILE OKOROMA, with him, CHIAMAKA AGU and LARABA ALIYU For Appellant(s)