FRN v. MAMU (2020)

FRN v. MAMU

(2020)LCN/14466(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, July 15, 2020

CA/A/788C/2018

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

A.V.M ALKALI MOHAMMADU MAMU RESPONDENT(S)

RATIO

DIFFERENCE BETWEEN A CRIMINAL APPEAL ON THE FACTS AND A APPEAL ON THE FACTS IN THE CIVIL CASE

A Criminal Appeal on the facts is not quite the same as an Appeal on the facts in a Civil Case. In a Civil Appeal, the general ground is that the Judgment is against the weight of evidence, whilst in a Criminal Appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence. Civil matters are decided on the preponderance of evidence, that is, when the evidence adduced by the Appellant is weighed against that which is adduced by the Respondent. In criminal cases, the Court does not embark on such exercise, instead, the prosecution must prove his case beyond reasonable doubt. So it is wrong to couch a ground that is not in conformity with this burden of proof, see ATUYEYE & ORS VS ASHAMU (1987) 18 NSCC (PT. 1) 117 AT 118 -119. There is no weight of evidence in a Criminal Appeal because evidence presented is not weighed on an imaginary scale because the burden on the prosecution is constant from beginning to end, it is strictly proof beyond reasonable doubt. The difference was restated in the case of ADELUSOLA & ORS V AKINDE & ORS (2004) LPELR-120 (SC) thus:
“Be that as it may, it is judicially recognised that an omnibus ground of appeal in a criminal case is differently drafted from such a ground of appeal in a civil case. In a criminal case, the essence of such a ground is that there is no evidence to support the verdict and therefore the omnibus ground in a criminal case is framed thus – “The verdict or Judgment is unreasonable and cannot be supported having regard to the evidence”: see Aladesuru v. The Queen (1956) AC 49; B.P. (West Africa) Ltd. v. Akinola Allen (1962) 2 SC TLR 388. In civil cases which are decided on the basis of preponderance or balance of evidence, the omnibus ground of appeal is simply that the “judgment is against the weight of evidence”; See Akibu v. Opaleye & Anor. (1974) 11 SC 189. However, it has been held that it is unobjectionable if such a complaint is couched as – “the judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.” See the cases of Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267; Adeyeri v. Okobi (1997) 6 NWLR (Pt.510) 534; Stephen Oteki v. A.-G., Bendel State (1986) 2 NWLR (Pt.24) 648 at 659.” PER NIMPAR, J.C.A.

THE TERM ‘PRIVITY OF CONTRACT”

There is a principle in law called privity of contract and that excludes the Respondent even from a civil trial to benefit not to talk of benefitting from it in a criminal trial. See what the apex Court said in the case of AG FEDERATION V A.I.C LTD (2000) LPELR-628(SC), thus:
“The general principle of law of contract is that a contract affects only the parties to it, “and cannot be enforced by or against a person who is not a party giving him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract, stands in such near relationship to the party from whom the consideration does not entitle him to sue upon the contract” – See Halsbury’s Laws of England (3rd Ed) p.66 para. 110. See also Ikpeazu v. ACB Ltd (1965) NMLR 374; Negbenebor v. Negbenebor (1971) 1 ALL NLR 210; New India Assurance Co. v. Odubanjo (1971) (1) NCLR 363. These cases have followed the House of Lords’ decision in Dunlop Pneumatic Tyre Co. v. Selfridge & Co. (1915) AC 847 at 853, where Lord Haldane said, “My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of jus quaesitum tertia arising by way of property, as for example, under a trust but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personal.” PER NIMPAR, J.C.A.

BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

In resolving the question of proof, it is settled that in criminal trials, the prosecution is duty bound to prove the ingredients of the offence beyond reasonable doubt. The concept of Proof beyond reasonable doubt has received some attention and it is no longer a mute issue, it was said that a reasonable doubt does not mean some light, airy, unsubstantiated doubt that may flip through the minds of any us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason, see EROMOSELE V FRN (2017) 1 NWLR (Pt. 1545) 55 which relied on EGHAREVBA V STATE(2016) 8 NWLR (Pt. 1515) 448. Furthermore, the apex Court also explained the difference between proof beyond reasonable doubt and proof beyond all shadow of doubt, in the case of BILLE V STATE (2016) LPELR-40832(SC) where the apex Court held: “There is a world of difference between proof beyond reasonable doubt and proof beyond a shadow of doubt. The former is a requirement of law. See Section 135 (1) of the Evidence Act, 2011. See also Obue v. The State (1976) 2 SC 141. The latter would require the prosecution to prove all essential ingredients/elements in a case to a mathematical certainty, an impossible task given the variables in human affairs. It would mean that no contested criminal case would ever be proved.” PER NIMPAR, J.C.A.

WAYS OF PROVING THE ALLEGATION OF AN ACCUSED PERSON

There are 3 settled ways the prosecution can prove its allegation against an accused person, it was held in the case of BILLE V STATE (2016) LPELR-40832(SC) thus:
“There are three ways of proving a crime in Court. These are: (1) Direct evidence. (2) Confessional statement/statements made by the accused, and (3) Circumstantial evidence. See Adeyemo v. State (2015) 4 SC (pt. 11) 112 at 129 paras 30-35. If the accused pleads guilty and admits the facts as laid the prosecution has no duty to prove what has been admitted.”
See also AKWUOBI V STATE (2017) 2 NWLR (2017) 2 NWLR (Pt. 1550) at 429. The prosecution can adopt any of the 3 ways or a combination of any two or all of them to prove a crime. PER NIMPAR, J.C.A.

WHETHER OR NOT CONFESSION IS THE BEST EVIDENCE FOR THE PURPOSE OF CONVICTION

The prosecution can where they have a confessional statement voluntarily made by the accused use same to prove the commission of a crime, there can be no better evidence than a confessional statement from the person who did an act admitting the doing of the act, see JUA V STATE (2010) LPELR-1637(SC) which held:
“The best evidence for purpose of conviction is confession to the commission of the crime by the accused person. What the Court should look into is whether the confession was voluntary and accords with Section 27 of the Evidence Act and not against Section 28 of the Act. In the case, the Court of Appeal rejected the confessional statement but accepted the oral confession made by the appellant to the police. A conviction on the oral confession is proper in law.”PER NIMPAR, J.C.A.

DEFINITION OF A CONFESSIONAL STATEMENT

The Appellant herein tendered Exhibits N1-N5 and Z7 which it contended were confessional statements. A Confessional Statement was defined in the case of ALO V STATE (2015) LPLER-24404(SC) thus:
“The principle of law governing the admissibility of a confessional statement alleged to have been made by an accused person are well provided by our Evidence Act and the case law. Section 28 of the Evidence Act, 2011 (former Section 27 of the Evidence Act, Cap E14 Laws of the Federation, 2004) defines a confession to be an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Once such a confessional statement meets the test of admissibility, it alone without more, is sufficient to ground a conviction for the offence which was admitted by the accused and the requirement of proof beyond reasonable doubt in criminal cases would have been completely and fully satisfied by the prosecution, see: Ntaha v. State (1972) 4 SC 1; Ikemson v. State (1989)3 NWLR (Pt. 110) 455; Saidu v. State (1982) 3 SC 41.” Per MUHAMMAD, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment the High Court of the Federal Capital Territory, Abuja; Coram: HON. JUSTICE SALISU GARBA delivered on the 29th June, 2018 wherein the lower Court discharged and acquitted the Respondent (accused/defendant) on all four (4) counts preferred against the Respondent. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 13th July, 2018 donated 6 Grounds of Appeal.

Facts relevant to this Appeal are amenable to brief summary. The Appellant arraigned the Respondent on a four count charge which state thus:
COUNT 1
“That you AVM ALKALI MOHAMMED MAMU, whilst serving as the Group Managing Director (GMD) NAF Holding Company and Air Officer Commanding Training Command and charged with the responsibility to supervise/oversee the execution of NAF procurement through the Office of National Security Adviser for certain Military supplies by Societe D’ Equipments Internationaux Nig. Ltd. on or about 26th August, 2014 at Abuja within the jurisdiction of this Honourable Court did corruptly accept a gift in the sum of

N5,900,000.00 (Five Million , Nine Hundred Thousand Naira) only from Societe D’ Equipments Internationaux Nig. Ltd, a contractor with the Nigerian Air Force to make up for the purchase price of a Range Rover Evoque valued at N15, 2000,000.00 (Fifteen Million, Two Hundred Thousand Naira) only from Coscharis Motors Ltd 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”
COUNT 2
That you AVM ALKALI MOHAMMED MAMU, whilst serving as the Group Managing Director (GMD) NAF Holding Company and Air Officer Commanding Training Command and charged with the responsibility to supervise/oversee the execution of NAF procurement through the Office of National Security Adviser for certain Military supplies by Societe D’ Equipments Internationaux Nig. Ltd. on or about 11th September, 2014 at Abuja within the jurisdiction of this Honourable Court did corruptly accept a gift in the sum of $300,000.00 (Three Hundred Thousand United States Dollars) only from Societe D’ Equipments

Internationaux Nig. Ltd, 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.
COUNT 3
That you AVM ALKALI MOHAMMED MAMU, whilst serving as the Group Managing Director (GMD) NAF Holding Company and Air Officer Commanding Training Command and charged with the responsibility to supervise/oversee the execution of NAF procurement through the Office of National Security Adviser for certain Military supplies by Societe D’ Equipments Internationaux Nig. Ltd. on or about 24th February, 2015 at Abuja within the jurisdiction of this Honourable Court did corruptly accept a gift of a vehicle to wit: Jaguar XF Saloon Car valued at N12,500,000.00 (Twelve Million Five Hundred Thousand Naira) only from Societe D’ Equipments Internationaux Nig. Ltd, 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.
COUNT 4
That you AVM ALKALI MOHAMMED MAMU, whilst serving as the Group Managing Director (GMD) NAF Holding Company and Air Officer Commanding Training Command and charged with the responsibility to supervise/oversee the execution of NAF procurement through the Office of National Security Adviser for certain Military supplies by Societe D’ Equipments Internationaux Nig. Ltd. on or about 24th February, 2015 at Abuja within the jurisdiction of this Honourable Court did corruptly accept a gift of a vehicle to wit: Ford Explorer Expedition SUV valued at N15,000,000.00 (Fifteen Million Naira) only from Societe D’ Equipments Internationaux Nig. Ltd, at 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.”

The genesis of the charge arose from the Presidential Committee on the Audit of Defence Equipment Procurement (CADEP) which was mandated to look into contracts awarded for military

procurement. In the course of the investigations, several payments were made to some companies and individuals, some of which are: Societe D’ Equipment Internatioaux Nigeria Ltd owned by a Nigerien citizen named Himma Abubakar. In the course of tracing the payments, the Appellant discovered that certain payments were made to some senior Military Officers and companies they have interest in. Some of the companies are Kalli Fertilizer Company Ltd and Coscharis Motors Nigeria Ltd. Further investigations revealed that the Kalli Fertilizer company is owned by family members of the Respondent. Also payments made to Coscharis were discovered to be for 3 cars, one of which was registered in the name of Lami Mamu, Respondent’s wife and was delivered to her. Two other cars were delivered to the Respondent.

That it was also discovered that that confirmation of deliveries at the NAF facility by SEI NIG LTD were signed by the Respondent (Exhibit L) while the contract award letters are Exhibit A1 and A2. When the Respondent was confronted, he offered to return the cars and refund some money particularly $300,000.00 USD. Subsequently, the Respondent was

arraigned on 4 counts reproduced above. Upon full trial, the Court below discharged and acquitted the Respondent thus this Appeal.

The Appellant’s Brief settled by SYLVANUS TAHIR ESQ., is dated 19th December, 2018 and filed on the same day distilled 5 issues for determination as follows:
1. Whether the Learned trial Judge was wrong when His Lordship held that the contract under which the charge took root are invalid and incapable of sustaining the counts therein, thereby discharging and acquitting the Respondent.
2. Whether the Extra-Judicial Statements made by the Respondent (Exhibit N1-N5 and Z7) were confessional in nature to warrant the trial Court finding the Respondent guilty and consequently convicting him therein.
3. Whether the learned trial Judge was wrong when his lordship held that the prosecution suppressed evidence by failing to frontload the statement by the Respondent to the Special Task Force, Team 1 (STF1) which investigated the instant case leading to this charge.
4. Whether the lower Court was wrong in holding that the operatives of the Appellant failed to comply with the provisions of Section 15 (4) and

17(1) and (2) ACJA 2015 and that same rendered the statements of the Respondent impotent and inadmissible, thereby leading to the discharge and acquittal of the Respondent on all the charges.
5. Whether the lower Court was wrong when it held that failure of the prosecution to call one Hima Abubakar (the Managing Director of SEI Nig Ltd) as a witness put a huge dent on the prosecution’s case.

The Respondent’s Brief settled by J.B DAUDU SAN, is dated 24th April, 2020 filed on the same date and deemed 27th April, 2020. It formulated a lone issue thus:
Whether the learned trial Judge Hon. Garba J of the High Court of the Federal Capital Territory Abuja could be faulted or adjudged incorrect when he held that Prosecution failed to establish a case of corrupt gratification under Section 17 of the Independent Corrupt Practices and Other Related Offences Act 2000 on which the 4-count charge was framed against the Respondent? [ISSUE NO 1] [GROUNDS 1-5

APPELLANT’S SUBMISSIONS
ISSUE ONE
In submitting to issue one the Learned Counsel to the Appellant submitted that in a bid to prove the charge, one of the witnesses called by

prosecution, PW1-Air Commodore S.O.A Makinde testified that he knew SEI Nig Ltd in his official capacity and also knew the Respondent. That he was directed by the Chief of Air Staff to issue some award of contract letters to SEI Nig Ltd in 2015, one of which is the award letter dated 18/5/2015 for the procurement of aircraft ammunitions and the award of contract dated 18/5/2015 for the overhaul of helicopters. Both award letters were tendered in evidence and admitted as EXHIBITS A1 and A2 as well as B1 and B2. With the letter of awards of contracts issued to the company, it went ahead and executed the contracts under the facilitation and supervision of the Respondent which said letter of confirmation of deliveries issued by the Respondent to the company was tendered by the prosecution and admitted as Exhibit L. The Appellant argued that from available evidence, the contracts awarded to SEI Nig Ltd were duly executed and NAF enjoyed benefits of the contract as awarded and executed.

The Appellant further submitted that the Court below took extraneous issues into consideration such as the alleged failure of the offeree to accept the offer (award letters),

lack of pricing of the items/supplies or non inclusion of the said procurement in the NAF budget, which are irrelevant, merely as an excuse to discharge and acquit the Respondent. They argued that in the determination of the charge, what was important was that the contractor executed the job and delivered military supplies, the Respondent facilitated the timely delivery of the supplies and the Respondent corruptly accepted gifts from the contractor in the discharge of his official duties. That the trial Court closed its eyes to all these facts and discharged and acquitted the Respondent on all the charges on frivolous grounds that the contract was inchoate and a nullity.

The Appellant further submitted that the Respondent was a stranger to the contract between the NAF and SEI, there being no privity of contract between the Respondent and the contracting parties it did not lie in the mouth of the Respondent to raise issues over validity of a contract which none of the contracting parties challenged or raised issues. It is elementary principle of English law known as the doctrine of “privity of contract” that contractual rights and duties only

affect the parties to a contract, the contractual rights are only binding on, and enforceable by the immediate parties to the contracts. On the doctrine of privity of contract they cited the case of F.A.T.B LTD Vs PARTNERSHIP INV. CO LTD (2001) NWLR (Pt.695) 517 @ 527. The application of doctrine of privity of contract was also pronounced upon in the case of C.A.P PLC V VITAL INV. LTD (2006) 6 NWLR (Pt. 976) 220.

Appellant further submitted that it was wrong for the Court below to hold that the contracts under which the instant charge took root were invalid, inchoate and incapable of sustaining the counts, when there was no dispute between the contracting parties, moreso the Respondent was a complete stranger to the said contract with no right and liabilities attached to him under the contract which he facilitated and or supervised and issued confirmation of deliveries and full execution thereof.

They urge the Court to set aside the Judgment of the lower Court on this score as it was unreasonable and it occasioned a gross miscarriage of Justice against the Appellant.

ISSUE TWO
In arguing issue two the Appellant submitted that from the

onset the extra Judicial Statements made by the Respondent i.e EXHIBIT N1-N5 and Z7 were confessional in nature thereby warranting the Court below to find the Respondent guilty and consequently convict him thereon.

On what confession is, the Appellant cited the following cases UDO V STATE (2016) 12 NWLR (Pt.125) 1 S.C @ 34; JOHN V STATE (2016) 11 NWLR (Pt. 1523) S.C 191 @ 207; OMISADE V QUEEN (1964) 1 ALL NLR 233 and OBOSI V STATE (1965) NWLR 119.

The Appellant submitted that at the trial Court the prosecution led evidence through its witnesses PW1-PW4 and tendered several document including Extra-Judicial Statement made by the Respondent to establish the truth of the allegation leveled against the Respondent, particularly in his Extra-Judicial statement dated 2/2/2016 which was admitted as EXHIBIT N1 at page 717 line 14-28 and the Respondent statement which he volunteered to STF1 on 2/2/2016 at page 205 line 9-18, that in corroboration of the statements made by the Respondent pertaining the three vehicles the prosecution led evidence through PW2 Musa Kishimi an official of Coscharis Motors Limited and tendered Exhibits D1, D2, E1, E2, F1 and F2

showing delivery of the three vehicle the subject of count 1-4.

That the corroborative evidence of the receipt of the sum of $300,000,0 USD, the prosecution led evidence through PW3 an official of Zenith Bank through which the statement of Kalli fertilizer ltd was tendered (Exhibit J) showing the receipt of $300,000.00 on the 11/9/2014.

PW4, detective Junaid Sai’d gave evidence detailing the investigation activities carried out on the allegation that formed the basis of the charge.

They further submitted that none of the prosecution witness testimonies were impeached nor discredited under Cross examination and notwithstanding above, the trial Court in its Judgment held that the Extra-Judicial Statements made by the Respondent did not amount to confessional statement

The Appellant contend that had the lower Court carefully considered the available evidence placed before the Court by the prosecution, the Court would have come to the conclusion that the prosecution proved the ingredients under Section 17(a) and (c) of the Corrupt Practices and Other Related Offences Act, 2000

The Appellant on the definition the word

“Corrupt” cited the case of OJO V FRN (2008) 11 NWLR (Pt. 1099) C.A 467 @ 519. The Appellant further submitted that going through the gamut of evidence laid by the Prosecution against the Respondent at the lower Court below, the essential ingredients of the offence was proved beyond a reasonable doubt to warrant the lower Court to find the respondent guilty as charged.

On the probative value of confessional statement the Appellant refer to HASSAN V STATE (2017) 5 NWLR (Pt. 1557) SC 1 @ 38. On whether the Court can convict based solely on confessional statements, they cited the case of UBIERHO V STATE (2005) 5 NWLR (Pt. 919) 644 @ 655, NTAHA V STATE (1972) 4 SC 167; IKEMSON V STATE (1989) 2 NWLR (Pt 11) 455; ALO V STATE (2015) 9 NWLR (Pt. 1464) SC 238 @ 270-271.

The Appellant submitted that the Respondent initially appeared before CADEP Committee which conducted the fact finding that was eventually referred to EFCC for further investigation. All later day story that the Respondent told the Court in his defence were neither related to the CADEP or EFCC. The Respondent did not avail the EFCC all the documents he tendered at his trial to show

that he has incurred expenses on behalf of the contractor but surprisingly the lower Court was convinced by the cocktail of lies and cock and bull stories. That all were mere thoughts and a desperate attempted to resile from the confession made in Exhibit N1 and Z7.

They urge us to disturb the Judgment of the lower Court and set it aside and hold that the Extra-Judicial Statements made by the Respondent were confessional in nature which would have warranted the lower Court to act on the same and to find the Respondent guilty.

ISSUE THREE
On issue 3, the Appellant submitted that in the course of his evidence in chief, the Respondent stated his statement before STF1 was not before the Court and at that material time the prosecution had already closed its case, that it was STF2 that duplicated their team’s case file and forwarded to the legal team upon which the charge was filed. Notwithstanding, the statement was tendered and admitted through the Respondent as EXHIBIT Z7, that the Respondent in their final written address argued that the prosecution suppressed the Defendant’s statement. The Court below relied on the decision of

MOHAMMED V STATE (1991) 5 NWLR (Pt. 192) S.C 438; OGUDO V STATE (2011) 18 NWLR (Pt. 1278) 1 @ 52-53 and used it against the prosecution as having suppressed evidence in violation of the Respondent’s right to fair hearing.

The Appellant contend that the lower Court was wrong in holding that the prosecution suppressed evidence given the circumstances of this case, the charge preferred against the Respondent was on the basis of the investigation conducted by STF2, the prosecution only become aware that the Respondent had appeared before STF1 during his defence, the Respondent never served a notice to produce on the prosecution in respect of any statement made or document submitted by the Respondent to STF1 which was declined by the prosecution to warrant the decision that the prosecution suppressed evidence. The statement was tendered and admitted as EXHIBIT Z7 through the Respondent during cross examination.

The Appellant submitted that suppression of evidence must be a deliberate act to withhold evidence against an adversary which was not the case in the case at hand. That MOHAMMED V STATE (supra) deprecated the attitude of counsel involved in

the suppression of evidence. They also referred to BELLO V STATE (1966) NSCC 268 @ 274 and OGUDO V STATE (supra). They further submitted that the facts and circumstances of the case at hand is distinguishable from the two case cited. It was therefore wrong for the lower Court to hold that the prosecution suppressed the statement or failed to frontload same in their proof of evidence. They urge us to set aside the said decision and resolve issue No 3 in the affirmative against the Respondent and in favour of the Appellant.

ISSUE FOUR
In arguing issue 4, the Appellant submitted that while being led in evidence at the Court below, the Respondent alleged that operatives of the EFCC disallowed his Counsel from being present with him when his statements were being taken curiously the Respondent did not call the said Counsel to testify at the trial on the spurious allegations made. Appellant submitted that the learned Senior Counsel for the Respondent argued that the alleged refusal by the operatives of the EFCC to produce the statement is a violation of Section 36(6) (b) CFRN, 1999 (as amended) and Sections 14(2), 15(4) and 17(1) and (2) of the ACJA, 2015

citing CHARLES V FRN- CA/L/727/2017.

Appellant quoted the Judgment of Court below uploading the contention of the defense at page 611 of the Record of Appeal. The Appellant went further to quote the provision of Section 14(2) ACJA where that the use of the word “shall” is deliberately used and it imposes duty on a person who has custody of a suspect to give that suspect reasonable facilities for obtaining legal advice, access to communication for taking steps to perfect bail and making arrangements for his defence or release, Section 15(4) ACJA where the word “Shall” is used twice imposes a duty for confessional statements to be made or recorded in writing and the word “May” is used in the same subjection for electronic recording in a retrievable compact disc, Section 17(1) where the word “Shall” was used to impose a duty on the police or other law enforcement agents to record the statement of a suspect if he so wishes to make a statement. In 17(2) ACJA the word “May” was used with regards taking the statement of a suspect in the presence of a legal practitioner of his choice etc and that the

word “May” is clearly not mandatory but permissive. They referred to the case of AKAEZE CHARLES V FRN-CA/L/727A/2017; FABIAN MATHEW V STATE-CA/L/1126/2011, JOSEPH ZHIYA V THE PEOPLE OF LAGOS STATE- LPELR-40562 (CA) OGUNTOYINBO V FRN-CA/A/11C/2018.

They further submitted that from the interpretation of Section 15(4) and 17(1) & (2) in OGUNTOYINBO V FRN (SUPRA) and the general principle of the interpretation of the word “May” in a long line of decided cases, they urge us to adopt same interpretation and set aside the decision of the Court below.

On the construction of the word “May” they cited NIGERIAN NAVY V LABINJO (2012) 17 NWLR (Pt. 1328) S.C 56 @ 77. On the meaning of “May” they cited B.A.T (INVEST) LTD V A. G LAGOS STATE (2014) 16 NWLR (Pt. 1433) C.A 260 @ 293 and MOKELU V FED. COMM. WORKS & HOUSING (1976) 3 S.C 35 @ 42.

On denotation of “May” and when of imperative import, they cited JUKOK INT’L LTD V DIAMOND BANK PLC (2016) 6 NWLR (Pt. 1507) 55 @ 95.

The Appellant further submitted that given the above analysis and consideration of the meaning of the word

“May” when used in a statute, they urge the Court to hold that the use of the word “May” in Section 17(2) of the ACJA, 2015 in relation to the presence of legal practitioner of the choice of the suspect is merely permissive and not mandatory as held by the Court below. They urge us to set aside the Judgment of the Court below on this score and resolve issue No.4 in favour of the Appellant and against the Respondent.

ISSUE FIVE
In arguing issue 5, the Appellant submitted that at the trial, the prosecution could not call the managing Director of SEI Nig. LTD, Mr Himma Abubakar to testify on the issue of $300,000.00 given to the Respondent, which the Respondent in EXHIBIT N1 freely confessed that money was given to him by the contractor as a way of expressing his gratitude for (Respondent) support. PW4 explained that the said contractor does not reside in Nigeria, being a citizen of Niger Republic. In the final written address, the Respondent argued that failure of the prosecution to call Himma Abubakar as a witness to confirm the confessional statement of the Defendant was fatal to the case of the prosecution as the said contractor

was a vital witness. The learned trial judge in its Judgment particularly at pages 612-613 vol.2 of the Record of Appeal upheld the contention.

It is their humble submission that the lower Court erred in law in closing its eyes to the oral and documentary evidence tendered by the prosecution which clearly established the allegations made against the Respondent.

They further argued that Himma Abubakar was a common potential witness for both the prosecution and the defence, as the stakes were equally high for the defendant to call him a witness; more so the Respondent was constantly in touch with the said Himma Abubakar with whom he exchanged emails, letters, phone calls and other correspondents. Such as Exhibit E3A pages 820-821; Exhibits E5-E5F pages 825-830, Exhibit E6 pages 831-833, Exhibit Y3- page 761 of the Record of Appeal Vol. 2

Appellant submitted that the Respondent having positively, directly, voluntarily and unequivocally confessed vide Exhibits N1-N5 and Z7 to the substance of the allegations against him which were corroborated by evidence outside the said confessional statement made it absolutely unnecessary to require the presence of

Himma Abubakar to testify in the case.

They went further to submit that the retraction of the Confessional Statement in N1-N5 and Z7 were mere after thoughts which the trial Court failed to discountenance as such.

On the effect of admission of confessional statement without objection, they refer to SMART V STATE (2016) 9 NWLR (Pt. 1518) S.C 447.

Again they further submitted that the law does not obligate the prosecution to call a particular witness to testify in a case, citing OSUAGWU V STATE (2016) 16 NWLR (Pt. 1537) S.C 31 @ 62-63; STATE V OLATUNJI (2003) 14 NWLR (Pt. 839) 18; SUNDAY V THE STATE (2010) 18 NWLR (Pt.1224) 223 and OGBODU V THE STATE (1987) 2 NWLR (Pt. 54) 20.

On who is a material witness they cited NWEKE V STATE (2017) 15 NWLR (Pt.1587) S.C 120 @ 143.

They further submitted that with the evidence placed before the lower Court, it is their contention that with or without Himma Abubakar the Appellant had laid evidence and proved its case beyond reasonable doubt to warrant the lower Court finding the Respondent guilty as charged.

On the meaning of reasonable doubt, they refer the Court toEROMOSELE V FRN (2017) 1 NWLR

(Pt. 1545) C.A 55 @ 107 per NIMPAR J.C.A; EGHAREVBA V STATE (2016) 8 NWLR (Pt.1515).

He urged the Court to disturb the Judgment of the lower Court and set it aside wholly and resolve all the issues against the Respondent.

RESPONDENT’S SUBMISSIONS
The Respondent in arguing their lone issue for determination submitted that the Appellant formulated 5 issues out of 5 Grounds of the Notice of Appeal at page 617-626 of vol.2 of the printed Record, which contains 6 grounds. The Appellant’s Ground 6 at page 625 of the printed record reads thus: ‘The decision of the trial Court was unreasonable and unwarranted in the circumstance of the case’, he argue that it is a defective Ground of Appeal in a Criminal Matter and the Appellant did not formulate any issue out of the defective Ground 6. He submitted that where the Appellant fails or omits to formulate an issue out of a Ground(s) of Appeal, that Ground is deemed abandoned in law and liable to being struck out citing AKINSUWA v STATE (2019) LPELR 47621 per Eko JSC.

They submitted that the lower Court at page 613-614 of the printed Record made critical findings to the effect that

Respondent’s elaborate defense in paragraphs 21-41 of their brief of argument was neither adverted to, controverted or challenged by the Prosecution, that ‘the defendant in his testimony explained that the payment made by Himma Abubakar was to defray the expenses he (the defendant incurred on behalf of Himma Abubakar as can be seen in EXHIBIT W. Respondent’s Evidence in this respect was never challenged nor controverted in any material way. That the Respondent further stated that he incurred expenditure for Societe D’ Equipments Internationaux Nigeria Limited with Himma Abubakar’s consent. He referred to a letter he wrote to Himma Abubakar on the 5th of March 2014, the letter was admitted in evidence and marked Exhibit S. The reply by Himma giving Consent to incur such expenditure in Exhibit S was admitted in evidence as EXHIBIT T. The Defendant also tendered proof of the purchase of air tickets through a travel agency which was admitted as EXHIBIT U’.

The Respondent argue that the effect of failure to Appeal against the fundamental finding and conclusion reproduced above is that the Prosecutor has thrown in the towel

as it relates to the crux of the case which is the basis of his receiving money from Mr. Himma Abubakar, which from the uncontroverted evidence were refunds for expenses incurred by the Respondent on behalf of the former (Himma). Furthermore, that it follows therefore that the Appellant has accepted the Respondent’s version of events as correct, conclusive and binding, citing OLEKSANDR & ORS V LONESTAR DRILLING CO LTD & ANOR (2015) LPELR 24614 (SC); IYOHO V. EFFIONG (2007) 11 NWLR (PT.1044) 31; S.P.D.C. NIG. LTD. v. X. M. FEDERAL LTD. & ANOR. (2006) 16 NWLR (Pt.1004) 189; ADEJOBI & ANOR V. THE STATE (2011) 12 NWLR (PT.1261) 347.

They respectfully submitted that all the 5 issues argued by the Appellant in his brief of argument are academic and detached from the main issue which is whether the sums of money in the count charge were corruptly obtained from the said Himma Abubakar who was not called to testify.

The Respondent further argued in response to issue 2, 3 and 4 of the Appellant’s brief of argument that deals with the status and validity of the alleged Confessional Statements Exhibits N1-N5, which the Appellant said

are confessional, and the key portions of EXHIBITS N1 AND Z7 was reproduced by the Appellant which he believes establishes or settles his contention that the said statements cannot be described as anything other their being confessional. The Respondent argued that it cannot be correct because all the authorities (judicial decisions) identify a ‘Confessional Statement’ as being direct, positive and unequivocal. They refer to OLALEKAN V. STATE (2002) 4 WRN 146; (2001) 18 NWLR (Pt. 746) 793, SALAWU V. STATE (1971) NMLR 249; 1 ALL NLR 104 AND NWACHUKWU V THE STATE [2007] 17 NWLR PT. (1062) 32.

The Learned Counsel further submitted that the factual position is that the Respondent was vindicated by the same Prosecution with the production of EXHIBIT Z7, albeit during the former’s cross examination, a stage where statements are used to test the credibility or veracity of a witness and not during the Prosecution’s case when alleged ‘Confessional Statements’ are tendered so that the right objections can be taken at that stage. That the only reasonable inference that can be drawn from this scenario is that the Prosecution picked and

chose which of the Respondent’s statements to tender during trial when the Defendant would have made a choice as to how to attack the statement. Respondent had no need to call for a trial within trial when EXHIBITS N1-N5 were tendered because as demonstrated above, they were not direct, positive or unequivocal. They relied on the case of MOHAMMED V STATE [1991] LPELR 1901 (SC); ODOFIN BELLO V. THE STATE (1966) N.S.C.C. 268 AND OGUDO V THE STATE [2011] 18 NWLR PT. 1278 at 52-53

In response to paragraph 6.8 of the Appellants brief of argument, the Respondent submitted that the Prosecutor in justifying the use of the statements garnered by STF2, the Appellant submitted that this confirms the fact that statements made by the Defendant, which would have explained the source and reason for the funds in his account, were profoundly suppressed. There is no known practice whereby an accused person will issue Notice to produce on the Prosecution before all statements made to the EFCC are tendered in Court. Secondly, all the other matters raised in the above passage are purely internal matters of the EFCC, which in the eyes of the law is only one organ,

Sections 1, 12-(1) and (2), 13 and 36 of the EFCC (Establishment) Act 2004.

Appellant submitted that from the foregoing, the lower Court was correct when it held that the statements EXHIBITS N1-N5 were not confessional in nature after he had applied the 6 ‘sound and golden’ Rules laid down in the English case of R v Sykes. Finally on the issue of the validity of Exhibit N1-N5, the Respondent argued that the lower Court considered the arguments of both parties and resolved the issue in favour of the Respondent to the effect that the requirement of the presence of a legal practitioner at the taking of the statement by law enforcement agents and the video or audio recording of the exercise were mandatory as required by Section 15-(4) and 17-(1) and (2) of ACJA and relying on a plethora of cases including CHARLES V FRN (2018) LPELR 43922.

In response to the Appellant’s argument that the lower Court was in error to have relied on the case of CHARLES v FRN (supra), the Respondent cited the case of OWHORUKE v C.O.P (2015) 15 NWLR (PT 1483) 557 @ 576 per RHODES VIVOUR JSC.

Appellant urge the Court to discountenance the

Appellant’s submissions on the validity or otherwise of EXHIBITS N1-N5 and uphold the decision of the trial Judge.

On the prosecution’s failure to prove the essential ingredients of the offence, the Respondent quoted from the Judgment where the Court below held at page 614-615 of Vol. 2 of the printed record and said the inability of the Prosecution to establish the basic ingredients of the offence of ‘receiving gratification’ leveled against the Respondent defeated the charge.

They submitted that the Appellant failed again to Appeal against this specific finding therefore the Appellant has conceded the point that the ingredients of the offence in issue have not been proved. That for the Prosecution to prove that the Respondent received the alleged gifts of monies and cars corruptly; the corrupt intention and or objective with which he received them must be demonstrated citing NWOKEARU V STATE [2013] 16 NWLR (PT. 1380) 207 AT 235 and OJO & ANOR V. FRN (2008) LPELR-5155(CA) 65.

Appellant further submitted that, the Appellant failed to prove the alleged gifts in Counts 1, 2, 3 and 4, i.e. the N5,900,000 transferred to the

Defendant’s account with Coscharis Motors, the $300,000.00 paid to the bank account of Kalli Fertilizer Ltd, the Jaguar car and the Ford Expedition car, respectively were all gratification or corrupt gifts. Prosecution failed to prove that the alleged gifts were given as a reward for the purpose of a rendered service or benefit, i.e. the ‘actus reus’. Secondly, the prosecution failed to prove the criminal intention, i.e ‘mens rea’, the purpose for which the alleged gifts were received by the Defendant. Thirdly, the prosecution failed to prove that the alleged gifts were indeed gifts, referred to OKORO V THE STATE [1988] NWLR (Pt. 94); UNREPORTED APPEAL NO: CA/A/794C/2017 FRN V AVM KAYODE-BECKLEY DELIVERED ON THE 17TH OF FEBRUARY 2010.

On the prosecution’s failure to call a vital witness – Himma Abubakar, the Respondent’s submitted that the Appellant has argued it under issue No. 5 in his brief of argument. Equally hinged on Ground 5 in the Notice of Appeal is alleged confessional statement – EXHIBIT N1 negates or displaces the need to call the said Himma Abubakar, the alter-ego of SEI Nigeria Ltd and that there was

sufficient evidence on the record upon which to convict the Respondent without calling the said Himma Abubakar to testify.

They submitted that the purported Confessional Statement, Exhibits N1-N5 were not confessional in nature. However, that even if they are (though not conceded) one of the tests stipulated in R v Sykes (supra) requires the Prosecution to establish (a) if there is anything outside the confession to demonstrate its truthfulness and (b) if it is corroborated? That this tests require the Prosecution to produce evidence of the person who gave gratification in confirmation of the contents of the 4-count charge. Most importantly, proof of the ingredients of the offence charged, particularly that of establishing the ‘mens rea’ of ‘corruptly receiving’ which cannot be established without calling the said Himma Abubakar, the alleged giver of gratification through cars and money.
They urged the Court resolve the above in favour of the Respondent.

On the invalidity of the contract upon which the Respondent is alleged to have received gratification, it is the Respondent humble submission that the purported

contracts under which the charge took root are invalid and incapable of sustaining the counts therein. PW1 under cross examination and in his statement to the EFCC admitted that to the best of his knowledge the contract was never accepted as there was no letter of acceptance in compliance with the terms of the contract, referred to BPS CONSTR. & ENGR. CO. LTD. V F.C.D.A (2017) 10 NWLR (Pt.1572) 1 at 25. The Respondent submitted that of PW1 was corroborated by the evidence-in-chief of DW1 including Exhibits A1 and A2 which showed clearly that the purported contract documents were invalid. According to him, the purported award of contract is a non-starter because there was no offer or acceptance. Hence, an allegation of gratification from an invalid contract cannot stand in law as no one can build something upon nothing and expect it to stand. Rather, it will fall like a pack of cards as ex nihilo nihil fit. They referred to the case U. A. C. V. MACFOY (1961) 3 ALL E.R. 1169 AT 1172 and MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587; (1962) 2 SCNLR 341.

The Respondent submitted that the Appellant did not prove that the Respondent was charged with the

responsibility to supervise/oversee the execution of NAF Procurement through the Office of the National Security Adviser for certain Military Supplies by Societe D’ Equipments Internationaux Nig Ltd as alleged in the Charge.

Furthermore, the Appellant submits that the Prosecution did not prove that Societe D’ Equipments Internationaux Nig Ltd is a contractor with the Nigerian Air Force as alleged in the Charge. The Respondent clarified in his testimony, which is unchallenged that the Societe D’ Equipments Internationaux Nig Ltd was a contractor to the National Security Adviser. It is for these reasons that the Respondent urges the Court to resolve this issue in their favour.

RESOLUTION
Upon a careful consideration of the Notice of Appeal, the Record of Appeal and the Briefs of learned Counsel for the parties, I am inclined to adopt the sole issue donated by the Respondent, this is informed by the nature of the Appeal being a Criminal Appeal in which the burden of proof remain constant on the Appellant and the issues

distilled by the Appellant all revolve around evaluation of evidence. To avoid repetition and for expediency, all the issues formulated by the Appellant shall be resolved within the sole issue donated by the Respondent.

The Respondent observed that ground six is incompetent for a criminal appeal and no issue was distilled there from, therefore, it is deemed abandoned. It is trite that a Ground of Appeal which no issue is distilled from, is deemed abandoned, see STATE V OMOYELE (2016) LPELR-40842 (SC) wherein it held:
“When no issue is formulated from a ground of appeal the Ground of appeal is abandoned and should be struck out. See Are v. Ipaye (1986) 3 NWLR (Pt. 29) p. 146.”
Consequently, Ground 6 is struck out having been abandoned.

As a follow up, there cannot be an omnibus ground of Appeal in a Criminal Appeal as couched in this Appeal.
A Criminal Appeal on the facts is not quite the same as an Appeal on the facts in a Civil Case. In a Civil Appeal, the general ground is that the Judgment is against the weight of evidence, whilst in a Criminal Appeal it is that the verdict is unreasonable or cannot be supported having regard to the

evidence. Civil matters are decided on the preponderance of evidence, that is, when the evidence adduced by the Appellant is weighed against that which is adduced by the Respondent. In criminal cases, the Court does not embark on such exercise, instead, the prosecution must prove his case beyond reasonable doubt. So it is wrong to couch a ground that is not in conformity with this burden of proof, see ATUYEYE & ORS VS ASHAMU (1987) 18 NSCC (PT. 1) 117 AT 118 -119. There is no weight of evidence in a Criminal Appeal because evidence presented is not weighed on an imaginary scale because the burden on the prosecution is constant from beginning to end, it is strictly proof beyond reasonable doubt. The difference was restated in the case of ADELUSOLA & ORS V AKINDE & ORS (2004) LPELR-120 (SC) thus:
“Be that as it may, it is judicially recognised that an omnibus ground of appeal in a criminal case is differently drafted from such a ground of appeal in a civil case. In a criminal case, the essence of such a ground is that there is no evidence to support the verdict and therefore the omnibus ground in a criminal case is framed thus – “The verdict or

Judgment is unreasonable and cannot be supported having regard to the evidence”: see Aladesuru v. The Queen (1956) AC 49; B.P. (West Africa) Ltd. v. Akinola Allen (1962) 2 SC TLR 388. In civil cases which are decided on the basis of preponderance or balance of evidence, the omnibus ground of appeal is simply that the “judgment is against the weight of evidence”; See Akibu v. Opaleye & Anor. (1974) 11 SC 189. However, it has been held that it is unobjectionable if such a complaint is couched as – “the judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.” See the cases of Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267; Adeyeri v. Okobi (1997) 6 NWLR (Pt.510) 534; Stephen Oteki v. A.-G., Bendel State (1986) 2 NWLR (Pt.24) 648 at 659.”

If the Ground of Appeal was not struck out for failing to give rise to an issue for determination, the way it is couched would have still attracted a striking out for being incompetent. Now, to the main Appeal.

The Appellant questioned the findings of the trial Court that the contract under which the charge took root was invalid and therefore incapable of sustaining the

counts alleged against the Respondent. The Court below on that basis proceeded to discharge the Respondent. It is important to make this profound statement that the trial was strictly a criminal trial in which the Respondent was alleged to have received gratification from a Company, S.E.I Nig Ltd which was contracted through Exhibit A1 and B1 supply materials to the Airforce. The contract was to render services to NAF. The excuse was that it was not accepted by the offeree and therefore the contract was inchoate. The Respondent is not a party to the contract, how then can he want to take benefit from an inchoate contract which does not concern him? There is a principle in law called privity of contract and that excludes the Respondent even from a civil trial to benefit not to talk of benefitting from it in a criminal trial. See what the apex Court said in the case of AG FEDERATION V A.I.C LTD (2000) LPELR-628(SC), thus:
“The general principle of law of contract is that a contract affects only the parties to it, “and cannot be enforced by or against a person who is not a party giving him the right to sue or to make him liable upon it. The fact that a

person who is a stranger to the consideration of a contract, stands in such near relationship to the party from whom the consideration does not entitle him to sue upon the contract” – See Halsbury’s Laws of England (3rd Ed) p.66 para. 110. See also Ikpeazu v. ACB Ltd (1965) NMLR 374; Negbenebor v. Negbenebor (1971) 1 ALL NLR 210; New India Assurance Co. v. Odubanjo (1971) (1) NCLR 363. These cases have followed the House of Lords’ decision in Dunlop Pneumatic Tyre Co. v. Selfridge & Co. (1915) AC 847 at 853, where Lord Haldane said, “My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of jus quaesitum tertia arising by way of property, as for example, under a trust but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.”

There is evidence on Record that the said company executed some contracts and there is even a confirmation of deliveries of supplies which the Respondent personally signed, see EXHIBIT L. The contention that the contract could not give rise to a crime is a fallacy and a misconception

of the law. It is obvious that a crime could be committed within a fake, illegal or inchoate contract. The important issue is for the prosecution to prove the elements of the offence. Validity of contract is not part of the ingredients of the offence alleged against the Respondent which must be proved beyond reasonable doubt. Rather, the argument should have been that validity of contract is not an ingredient of the offence and that if corruption was established, it is then explained by the inchoate nature of the contract and that it made a way for corruption. It cannot exculpable the Respondent on that ground.

In any case, there is evidence that the contract was executed see EXHIBIT L, furthermore, the parties to the contract are not challenging themselves and this is not a civil matter where the defence of inchoate contract could make a difference. There is no allegation of non performance in any of the counts of the charge. The Respondent argued that he incurred expenditure on behalf of Himma Mohammed and he was refunded through cash payment and cars. It then defeats the contention and findings of the trial Court that the contract couldn’t have

given rise to the offence. The duty on the Appellant in a criminal trial is to prove the ingredients of the offence beyond reasonable doubt and no more, no less. The validity of the contract is not relevant. The finding is perverse to the Criminal charge and it must be set aside. I find for the Appellant under its issue one.

BILLE V STATE (2016) LPELR-40832(SC) where the apex Court held:
“There is a world of difference between proof beyond reasonable doubt and proof beyond a shadow of doubt. The former is a requirement of law. See Section 135 (1) of the Evidence Act, 2011. See also Obue v. The State (1976) 2 SC 141. The latter would require the prosecution to prove all essential ingredients/elements in a case to a mathematical certainty, an impossible task given the variables in human affairs. It would mean that no contested criminal case would ever be proved.”

prosecution can adopt any of the 3 ways or a combination of any two or all of them to prove a crime.

alleged to have been made by an accused person are well provided by our Evidence Act and the case law. Section 28 of the Evidence Act, 2011 (former Section 27 of the Evidence Act, Cap E14 Laws of the Federation, 2004) defines a confession to be an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Once such a confessional statement meets the test of admissibility, it alone without more, is sufficient to ground a conviction for the offence which was admitted by the accused and the requirement of proof beyond reasonable doubt in criminal cases would have been completely and fully satisfied by the prosecution, see: Ntaha v. State (1972) 4 SC 1; Ikemson v. State (1989)3 NWLR (Pt. 110) 455; Saidu v. State (1982) 3 SC 41.” Per MUHAMMAD, J.S.C.

The Appellant also relied on JOHN V STATE (2016) 11 NWLR (Pt. 1523) 191 at 207 wherein the apex Court held that it is enough that the essential elements of the offence are in the statement admitting the commission of the offence. The statements admitted by the Court were admitted without any objection but were rejected on several grounds as

highlighted in the Judgment appealed against. The trial Judge stated that the statements were made contrary to Section 14(2) and (17(1) and (2) of the Administration of Criminal Justice Act, they provide thus:
“14 (2): A person who has the custody of an arrested suspect shall give the suspect reasonable facilities for obtaining legal advice, access to communication for taking steps to furnish bail, and otherwise making arrangements for his defence or release.
15(4): where a suspect who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on a retrievable video compact disc or such audio visual means.”
17(1): where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.
(2): Such statement may be taken in the presence of a legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an officer of Civil Society Organization or Justice of the Peace or any

other person of his choice. Provided that the legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.”
The Court below relied on some decisions of the Court in AKAEZE CHARLES V FRN delivered on the 19/3/2018 in Appeal No. CA/L/727A/2017; FABIAN MATHEW V STATE (unreported) decision in Appeal No. CA/L/1126/2011 delivered on the 11/12/15 and JOSEPH ZHIYA V THE PEOPLE OF LAGOS (2016) LPLER-40562(CA). The Court below adopted the definition of ‘MAY’ in the decision of AKAEZE V FRN (supra) to say it is mandatory that a statement of a suspect must be recorded in the presence of a legal practitioner failing which it must be rejected. Another reason given was that evidence of the Respondent in the witness box alleged that the statements were not voluntarily made. There is also the mention of Section 15(4) of the ACJA relied upon by the Court below. The import of the statutory use of the words ‘Shall’ and ‘May’ in the provisions reproduced above was given consideration in the case of

OGUNTOYINBO V FRN (2018) LPELR-45218(CA) per OWOADE, JCA thus:
“The other complaint by the Appellant on Issue One has to do with the relationship and effect of some of the provisions of the Administration of Criminal Justice Act (ACJA) vis-a-vis the provisions of the Evidence Act 2011 on the admissibility of confessional statements. This, in my humble opinion, includes the complaint of the learned Senior Counsel for the Appellant on the views of the trial Judge contained on Page 180 of the printed Record that he could not see how the non-presence of the Appellant’s lawyers taint the voluntariness of the statements he made. The learned trial Judge said in full at Page 180 of the Record that: “Even though I also prefer as more credible, the more detailed testimony of the TWT – DW1 as against those of the prosecution witnesses, that the Defendant’s legal representatives were not allowed to be present with him in the process of his writing his statements. I however fail to see, from the evidence on record, how the non-presence of his lawyers tainted the voluntariness of the statements he made.” Another way of putting the above statement made by the learned

trial Judge at Page 180 of the Record is that even if he believed the testimony of TWT – DW1 that his lawyers were not allowed to be with him while he made the statements, this fact has nothing to do with the voluntariness and perhaps also admissibility of the statement which is governed by the Provisions of Sections 28 and 29 of the Evidence Act and not also the Provision of Section 17(2) of the ACJA as suggested by the learned Senior Counsel for the Appellant. In the lines that followed the above statement of the learned trial Judge at Page 180 of the Record, he categorically explained: “that the Provision of Section 17(2) of ACJA canvassed by the learned Senior Counsel for the Defendant, that requires a Suspect’s Statement be taken in the presence of a Legal Practitioner of his choice, is also not a mandatory provision contrary to the contention of the learned Senior Counsel. My view is that the Provision is permissive and could be dispensed with depending on the exigencies of each particular case.” On the above, I perfectly agree with the learned trial Judge not only on the permissiveness of the Provision of Section 17(2) but also the portion of

Section 15(4) which says the taking of the statement which shall be in writing “may be recorded electronically on a retrievable video compact disc or such other audio visual means.” I think to his credit, the draftsman of the ACJA has carefully and deliberately use the words “shall” and “may” sometimes in the same text to pointedly make a distinction between statements/sentences that are mandatory and those that are permissive. The ACJA being a teleological enterprise, its draftsman dexterously mixes the use of the command word “shall” and the permissive word “may” for textual accomplishment. This is to my mind, recognition of the fact that the ACJA itself is largely a legislation in the realm of the ideal, containing provisions that are for now clearly enforceable and sometimes provisions that could only hope for enforceability in the nearest future. All however, to fulfill its grand purpose “to ensure that the system of administration of Justice in Nigeria promotes efficient management of Criminal Justice institutions, speedy dispensation of Justice, protection of the society from crime and protection of the rights and interests of the suspect, the Defendant and the

victim.” In any event, the traditional commonly repeated rule is that “shall” is mandatory and “May” is permissive. Mandatory words impose a duty; permissive words grant discretion. See: NIGERIAN NAVY VS. LABINJO (2012) 17 NWLR (PT. 1328) 56 (SC). The above analysis is different and distinct from the idea that the Evidence Act being a specific Act on evidence including trials within trials and admissibility takes precedence over the ACJA in matters of admissibility of evidence.” Per OWOADE, J.C.A
It is trite that the handling of evidence in any adjudication is primarily covered by the Evidence Act, any other legislation which makes provision for issues touching on evidence must take its subsidiary position to the Evidence Act. The ACJA is principally a procedural law and cannot therefore over ride the Evidence Act. The Respondent contends that his statement was not recorded in the presence of a legal practitioner, this objection amongst others grounded on the ACJA all relate to confessional statements and the mischief it sought to cure was to ensure that law enforcement agents do not extract a confession by inducement, promise, force or such unlawful

means. Where there is no confessional statement, the provisions cannot apply.
When a person desires to raise an objection to the admissibility of a confessional statement, the time to do so is at the point of tendering the statement and not thereafter. See ALO V STATE (2015) LPELR-24404(SC) wherein the apex Court held as follows:
“It has been long settled that the proper time to raise an objection to the voluntariness of a confessional statement is at the point when it is to be tendered in evidence. In the case of Nwachukwu v. State (2004) 17 NWLR (Pt. 902) p.262 at 273-290 it was held that: “A trial within trial is necessary only where a confessional statement is effectively challenged and not where all the opportunities at trial for such denial were never utilized. Thus, only where an issue arises as to whether a confession was made voluntarily should the exceptional procedure of holding a trial within trial be adopted by the Court…” The foregoing decision implies that objection to the voluntariness of a confessional statement must be raised timeously and not belated for purpose of conducting a possible trial within trial. See also the case of:

Okaroh v. State (1988) 5 NWLR (Pt. 81) p. 214 and Queen v. Eguabor (1962) 1 SC NLR 409.” Per OGUNBIYI, J.S.C
It is settled that an objection on the ground of involuntariness of a confessional statement can only be made at the point the Confessional Statement is sought to be tendered whether during the case of the prosecution or defence when the accused is in the box under cross examination. The voluntariness of a statement must be tested through a trial within trial and not by any other means. Trial within trial is a trial on its own right strictly to resolve the issue of voluntariness of a Confessional Statement. The accused must at the earliest opportunity disclose his line of challenge to the admissibility of a Confessional Statement. Failure to object to the admissibility of a Confessional Statement means it was voluntarily made. There was no objection in this case.
It is therefore illogical to contend that failure to record the statement in the presence of a legal practitioner or failure to record same will on those grounds alone throw away a Confessional Statement which has passed through a trial within trial and has been found to have been voluntarily

made in a ruling. To use the provisions of the ACJA to discard a confessional statement duly admitted after a trial within trial would mean using the law to set aside a decision of the Court other than by an appeal. There is no Constitutional or Statutory Provision for setting aside a decision of a Court other than by an appeal or the Court itself. Furthermore, where there was no objection and the confessional statements duly admitted and marked as EXHIBITS according to the Evidence Act, it cannot be discarded on the basis that it has not been recorded in the presence of a legal practitioner. I think not. All the authorities relied upon by the trial Court did not consider the overriding effect of the Evidence Act on evidence including confessional statements. The argument that EXHIBIT Z7 was admitted during the case for defence and under cross examination cannot be sole reason to discard same because it was tendered during defence. If it was confessional and there is an objection on its voluntariness, then, a trial within trial must be conducted at that stage to determine if it was voluntarily made. There is no rule that trial within trial can only be

conducted during the case of the prosecution. It is ideal but not sacrosanct. If the prosecution intends to tender a Confessional Statement through the defendant and he suggest it was not voluntarily made, the, the Court as a matter of duty must conduct a trial within trial. A trial within trial is strictly to determine that a statement was voluntarily made and nothing more.
If a statement was voluntarily made and its admissibility not objected to, any objection on the basis of Section 14, 17 and 15 of the ACJA becomes irrelevant because they are only relevant to confessional statements before it is admitted and not just any statement made by the accused person. In this appeal the statements tendered EXHIBIT N1-N5 and EXHIBIT Z7 were all tendered by the prosecution without objection. Arguments against them were canvassed in Respondent’s closing address.
The trial Judge discountenanced the Confessional Statements on the ground that fresh evidence came to light during the testimony of the Respondent and therefore the Confessional Statements were not voluntarily made. The Respondent is foreclosed from raising the issue of voluntariness during

his or final address defence which was not raised at the point of tendering of the confessional statements. If fresh evidence can have effect on the Confessional Statements, it cannot come from the Respondent who lost his opportunity to oppose the settlement. The trial Judge erred. And the authority relied upon is not on all fours with the facts of this case, therefore clearly distinguishable.

There is the issue of corroboration which the trial judge said was absent, the Court below found that corroboration cannot come from any source other than Himma Abubakar. This is outrightly a flawed finding. Corroboration as defined in the case of IKUMONIHAN V STATE (2018) LPLER-44369(SC) states thus:
“The meaning of the legal term “corroboration” as stated by Lord Reading, CJ, in Rex v Baskerville (1916) 2 KB 658, which was approved and adopted by this Court in Okabichi v. State (1975) 3 SC 96, is aptly captured as follows- Evidence in corroboration must be independent testimony, which affects the accused by connecting or tending to connect him with the crime- – It must be evidence, which implicate him, that is, which confirms in some material particular not

only the evidence that the crime has been committed, but also that the prisoner committed it. – – Corroborative evidence is evidence, which shows or tends to show that the story… that the Accused committed the crime is true, not merely that the crime has been committed, but that it was committed by him. In the said Okabichi V. State (supra), Coker, JSC, further stated as follows Corroboration is evidence, which may be direct or circumstantial but in any case, it is the duty of the Court to ascertain that whatever evidence is – used or regarded as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders the story more probable that it implicates the accused in some material particular – No stereotyped category of evidence is envisaged and a great deal depends on the circumstances of each case for what may in a given set of circumstances amount to corroboration may not be so in another set of circumstances.”
As expounded in the decision of the apex Court, circumstantial evidence could corroborate evidence. In this case, the journey of the funds as disclosed by bank

details, documents, payments from the SEI Ltd to the Cosharis – Car dealer, cash payments to Kalli Fertilizer Ltd, Respondent’s daughter’s Company, as long as the evidence is coming from other sources outside the statement, it could corroborate the confessional statement. Generally a Confessional Statement does not require corroboration, it is only a Confessional Statement retracted by the maker then Corroboration will be required before the Court can act on it, see ASUQUO V STATE (2016) LPELR-40597 (SC) which held thus:
“It is well settled that an accused can be safely convicted on his retracted confessional statement if the trial Court was satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See: Uluebeka v. The State (2000) 7 NWLR (Pt.565) 41; Okoh v. State (2014) 8 NWLR (Pt.1410) 502.”
The corroboration required is something

slight outside the Confessional Statement and to take the level of confirmation higher, a 6 way test has been designed to test the Confessional Statement by facts surrounding the entire case. The six way test is a set of questions the Court should answer before proceeding with a retracted the Confessional Statement. The issue of voluntariness cannot arise when a confession is retracted. The Court below with a wave of the hand discountenanced the confessional statement without passing it through the six way test. The Respondent having not opposed the admissibility of the Confessional Statements, the only other window for the Respondent is to retract the statement, even though the retraction will not stop the Court from using the statement, it will only pass it through the 6 way test. The trial Court failed in its duty by applying principles of law in a flawed manner leading to the striking out of the confessional statements. He erred, there was no legal basis for that action. Consequently, the said Section 14(2), 15(4) and 17(1) ACJA again becomes irrelevant. They cannot apply to retracted statement.
Considering the evidence before the Court, there was

corroboration for the Confessional Statements particularly, the SEI LTD payments for the cars, to the fertilizer Company in which his daughters are Directors and bank documents. To also go further, the Respondent had the opportunity of making the statements, there are facts outside of the statement to confirm the content of the statements, the statement are true, the confession is consistent with other facts and the Respondent had the opportunity of committing the offence. I find that the Confessional Statements are good to be evaluated for weight.

I therefore disagree with the trial Judge and find that the Confessional Statement were properly in evidence and must be evaluated along other pieces evidences before the Court. I resolve Appellant’s issue 2 in favour of the Appellant.

Appellant’s issue 3 relates to the finding that the Appellant suppressed evidence by failing to frontload the statement made by the Respondent to the Special Task Force, Team 1, a team of investigators different from the team which investigated the case in issue here. The statement was made to another team of investigators on another allegation and in another file

not the one in respect of the extant Appeal. The alleged statement was finally retrieved and tendered through the Respondent during cross examination, admitted and marked as Exhibit Z7. The Respondent contended that it did go through a trial within trial because it was tendered during defence. Admitted that it should have been tendered during the case of the prosecution but as explained earlier, there is no rule that a trial within trial cannot be conducted during defence. In any case, that was a statement brought to light by the Respondent and the prosecution dutifully searched for and tendered same. If the statement was with a different team investigating other allegations, why would the team prosecuting it be blamed for the documents in another file the team is unaware of? I opine that the trial Judge erred by suggesting that the Appellant was suppressed evidence. If the Respondent knew of the existence of the statement and there was evidence of its suppression, then, the Court below could make the remark but not when there is no evidence before the trial Court to suggest the Appellant suppressed the statement. All Counsel know and should be reminded that

evidence should not be suppressed, particularly the prosecution in a criminal trial as decided in BELLO V STATE (supra). But for the explanation that the Respondent appeared before two separate teams, the Appellant would not have escaped condemnation. I find for the Appellant here too.

The other contentious issue was the failure of the prosecution to call the Managing Director of SEI Nig Ltd, the Court below found that detrimental to the case of the prosecution. It is trite that the prosecution is not under any duty to call any particular witness, see IDAGU V STATE (2018) LPELR-44343(SC) wherein the apex Court held:
But the Prosecution is entitled to call witnesses it considers relevant to its case. It is not bound to call all the eye-witnesses or every person present at the scene of crime to testify in order to discharge the burden placed on it to prove its case beyond reasonable doubt. In fact, a single witness, who gives cogent eye witness account of the incident, will suffice, even in a murder Charge – see Ochiba V. State (2011) 17 NWLR (1277) 663 at 695 SC. In this case, it is not for the Appellant to dictate to the Prosecution or demand that

the wife of the first deceased must be called as a witness. The Prosecution has discretion in the matter; it determines the direction of its case and which witness to call to prove its case against the Accused. Once it discharges the burden to prove its case beyond reasonable doubt, it does not matter that a particular witness was not called to give evidence. At any rate, where an Accused feels strongly that the evidence of a particular witness is vital or essential to his defence, he is at liberty to call the witness in his defence. He should not sit and wait for the Prosecution to call the witness since the Prosecution is not expected to also conduct the case for the defence as well as its own. If the Appellant needed the evidence of the first deceased’s wife, whom he blamed for the incident, there is nothing in the statute books that hinders him from calling her as his defence witness. But he cannot be heard to complain or quarrel with the Prosecution for not calling her as its witness in the case against him.” Per AUGIE, J.S.C
The duty on the prosecution is to prove the ingredients of the offence and it is not vital to call a particular person, this is not to

admit that there are necessary witnesses that are essential to prove certain elements and failure to call such is fatal. Here it is the giver of a gift which the Court below considered necessary to come and say why he paid for cars for the Respondent, his wife and cash payment into a company managed by his children. This is after the Respondent admitted the gifts and explained how it all happened. The Court below is seeking for oral testimony in a situation where the journey taken by the funds was traced electronically. Parties involved in corrupt practices do not give receipts nor take minutes of meeting when such despicable events are planned and executed. The money had already moved into the control of the Respondent and there cannot be any explanation outside what the Respondent said in his confessional statements and the summersault made in his oral testimony. I do not see the need for the said Himma Abubakar to be called as a prosecution witness. Is it reasonable to expect him to spill the beans and rope the Respondent in? Certainly not. If the Respondent had need for him, he should have called him. He is not a vital witness and the Court below was wrong

to find that he is a necessary and vital witness. A vital witness was described in UZIM V STATE (2019) LPLER-48983(SC) thus:
”A vital witness is a witness, whose evidence may determine the case one way or the other, and it is settled that the failure to call such a witness is fatal to the Prosecution’s case – Onah V. State (1985) 3 NWLR (Pt. 12) 236 SC. It is also well settled that the Prosecution is entitled to call only the witnesses that it considers relevant to its case. In effect, it is for the Prosecution to determine the direction of its case and which witness to call to prove its case, and once it discharges that burden on it to prove its case beyond reasonable doubt. It does not matter that a particular witness was not called to give evidence… There is no legal boundary that hinders an Accused from calling any witness he considers vital or essential to his defence. It is foolhardiness in my view, for him to wait for the Prosecution to call a witness he needs for his defence. The Prosecution has a duty to prosecute the Accused within the ambit of the Law. To that end, the law grants it the discretion to call any number of witnesses or adduce any particular

evidence to prove its case beyond reasonable doubt. It cannot focus on that, and at the same time consider calling a particular witness needed by the defence to clear doubts in the case it made out against him. In other words, the Prosecution cannot conduct its own case and that of the defence as well.
Since the Respondent felt strongly that the presence of the Himma Abubakar was vital to his defence, he ought to have called him as his witness. He cannot complain or be seen to quarrel with the Prosecution for not calling him. It is the Respondent who considered him a vital witness, and the onus rested on him to call him as his Witness if, indeed, there were any doubts to clear. The Prosecution had nothing to lose for the absence of the said giver of the gift considered as corrupt influence. The Court below strayed from the noble path and dwelt so much on the need for Himma Abubakar to explain why he gave the gift and according to his words: to demonstrate that EXHIBIT N1-N5 is true. Assuming corroboration is needed, must it come from just that one person?

A Confessional Statement admitted without any objection does not require corroboration, see

SMART V STATE (2016) 9 NWLR (Pt.1518) 447 where the apex Court held:
“When a confessional statement is admitted without objection from the maker or his counsel, the law implies that the maker of the statement agrees with everything in the statement. It also means that the maker made the statement voluntarily and it is the truth on his role in the crime.”

That will only be relevant to the Respondent and not the Appellant as long as the ingredients of the offence can be proved by the witnesses called and EXHIBITS tendered.

The Court shall consider whether the 4 count charge was established by the evidence before the Court. Fundamentally, the Confessional Statements before the Court having been restored as evidence, they can sustain the charge but because there was a retraction, corroborative evidence is necessary. There are statements of account of SEI Nig Ltd clearly showing payments to Cosharis for the cars and the payment of $300,000.00 to Kalli Fertilizer Company, a company managed by the daughters of the Respondent. The movement of funds between Cosharis, Kalli and SEI Nig Ltd is evident and admitted. The directorship of Kalli

Fertilizer was established by CAC. There were contract documents tendered as Exhibits A1 and A2 and confirmation of deliveries signed by the Respondent in respect of supplies made by SEI Nig Ltd NAF. There is also the refund of the sum $300,000.00 (the equivalent of N48,660,000.00) made by the Respondent. This he said was appreciation given by Himma Abubakar. The findings from Cosharis confirming the delivery of the cars to the Respondent to EFCC and his wife are uncontestable.

The Respondent in defence explained that he incurred expenses on behalf of the SEI Nig Ltd and the money paid to Cosharis and $300,000.00 dollars were refund for the money he expended. This is where he needed the said Himma Abubakar to explain that relationship. There are correspondences by emails between the two in respect of air tickets through airline agents, however, the Respondent did not show that the amounts came from his personal account.

The Respondent in the box said EXHIBIT A is not a contract, if it is not a contract on what basis did the trial Court arrive at the finding that it was inchoate? The finding was based on the submissions of Counsel to the Respondent.

Respondent is not a party to the arrangement with the office of NSA but the Airforce is a beneficiary. The upgrade of aircrafts and training of pilots was an official arrangement between the parties. How then did Respondent become personally involved to the extent of spending huge sum of money? Alleged that he used his personal money to handle official functions leaves raises a lot of questions. The account from which the Respondent expended the money on behalf of SEI Nig Ltd was not disclosed. In his dealings with SEI Nig Ltd, the Respondent was acting in his official capacity so for him to use personal funds on behalf SEI NIG LTD suggest it was a private arrangement which he alone has the duty to explain. That is if the funds were not Airforce Funds. The Respondent in his evidence said he wrote a personal letter to Himma Abubakar (EXHIBIT S) and the Reply is EXHIBIT F. Emails between them were personal, through captmamu@yahoo.com, nothing official. The issue is not really the Respondent buying the tickets but the source of the funds which was not established by the Respondent.

On the $300,000.00 payment made to Kalli Fertilizer account, the Respondent

in his statement – EXHIBIT Z7 said he was over paid, that his entitlement was $12,000.00 but was paid $300, 000.00 while in his other statements he said it was for the welfare of the pilots on training abroad. In his evidence in chief he said the money was for National security (page 496 of the Record of Appeal) and yet it was paid into a company account and correspondences all between him and Himma Abubakar were all private. There is evidence of a private relationship which supports the allegation in the charge sheet.

On the whole, even though the burden is on the prosecution to prove the ingredient of the offence alleged and upon the prosecution presenting evidence which clearly established that the Respondent accepted gratification from one Himma Abubakar, the evidential burden shifted as it falls on the Respondent to show that the money was not gratification.
There is however what is called Evidential Burden. This arises after the satisfactory discharge of the legal burden of proof which is the foundation upon it can shift from one side of a case to the other. Where a party fails to discharge the legal burden or onus of proof placed on

him, the basis on which the evidential burden can arise would be absent or non-existent, see GILSOD ASSOCIATES LIMITED V ASSOCIATION OF LOCAL GOVERNMENT OF NIGERIA (ALGON) (2011) LPELR-4197 (CA). There is a distinction between burden of proof and evidential burden, firstly in law, a distinction is drawn between burden of proof of a case which as an inflexible rule rests on the plaintiff in Civil Matters and Evidential Burden which places the onus of proof on one making a specific assertion over a particular point essential to his stand on the matter regardless of whether the person making the assertion is the defendant. It is undisputable that the burden of proof rests on the prosecution from beginning of a Criminal trial to end. As a doctrine of law of Evidence, evidential burden imports that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the onus of proof of such allegation rests on him, see ARUM V NWOBODO (2004) 9 NWLR (PT. 878) 411; MOTANYA V ELINWA (1994) 7 NWLR (Pt.356) 252.
Generally, Evidential Burden is complimentary to the general principle of burden of proof that has its origin in

Sections 131 – 137 of the Evidence Act, 2011 and wherever its application is warranted, it is said that the burden of proof to establish a particular assertion has shifted, see ELEMO v OMOLADE (1968) NMLR 359. The Apex Court has summed up the principles in the case of OSAWARU v EZEIRUKA (1978) 6 -7 CS 135 at 145. It is trite that evidential burden oscillates, see ESSEYIN V STATE (2018) LPELR-44476(SC) which held as follows:
“The Appellant did not discharge the evidential burden he had to cast reasonable doubt on the prosecution’s evidence tending to establish his guilty criminal mind or the mens rea. So much fuss was made of the dictum in AIGBADION v. THE STATE (2000) 2 SCNQR 1 (also reported as (2000) 4 SC (pt. 111; (2000) 7 NWLR (pt. 656) 555) that the burden of proving the guilt of the accused person rested throughout on the prosecution. The AIGBADION case does not say that the defendant does not bear the burden of refuting or rebutting the prosecution’s case. Rather, it affirms the defence burden of rebuttal. It says that that evidential burden befalls the defence only after the prosecution had led evidence proving prima facie the guilt of the defendant

accused of committing an offence. Section 131 (2) and 136(1) of the Evidence Act lay the burden of proving a particular fact on the person who wishes the Court to believe in its existence. Co-terminusly, the defence in criminal proceedings has the evidential burden of casting reasonable doubt on the inculpatory prosecution’s case.” Per EKO, J.S.C.
The explanation given by the Respondent failed to disclose the source of the funds expended on behalf of the Himma Abubakar. I find similarity with the situation in the case of DAUDU V FRN (2018) LPELR-43637(SC) which held that;
“Where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts on him to explain how he got the money with which he bought the property or the legitimate transaction he engaged in for which the account was credited.”
It is clear that the arrangement was private and all the story telling in the witness box was out of context and had no relevance to the offence alleged. The Respondent succeeded in establishing his private relationship with Himma

Abubakar and failed to establish facts to rebut the evidence of the Appellant that what he received was truly refund and not gratification. Furthermore, no bank statement was tendered to confirm source of funds. The Respondent as a public officer was also under duty to establish the source of the funds and that it was not proceed of corruption, see DAUDU V FRN (supra). The Respondent admitted in EXHIBIT NI he received money beyond his entitlement. He kept to the excess until allegations were made.

The Respondent on count two admitted that his entitlement was $12,000 but he was paid $300,000.00 (see EXHIBIT N1) which he tried to retract in the box. The law is settled that a retracted Confessional Statement requires corroborative evidence no matter how slight. Suffice to restate here that the statement (EXHIBIT N1) was admitted without objection so voluntariness is not in issue. I considered the type of evidence that can corroborate a retracted statement earlier in this Judgment. It is that slight evidence outside the statement that corroborates a fact admitted earlier, in this case, the Respondent received from SEI Nig Ltd through Kalli Fertilizer Company

the sum of $300,000.00 and as confirmed by the bank statements of SEI Nig Ltd that the sum of $300,000.00 to the fertilizer company. The Court can rely on the Confessional Statement after passing it through the six way test mentioned earlier. I did that earlier in this judgment particularly with regards to count one.

The Respondent admitted making the statement, he had the opportunity of committing the crime and more so because he tried to hide the fact that it was payment to him by diverting it to the fertilizer company. He also attempted to explain it away and to justify the payments. The statement is also true because the company that received the payment is managed by his daughters as confirmed by the search report from CAC. The Respondent admitted and said it was a refund and in another breath said it was appreciation. He offered and returned the money to the Appellant. Is there anything outside the statement to verify it as true, I say yes. The statement of account of Kalli Feritlizer company and the statement of account of SEI Nig ltd all attest to the facts in the Confessional Statement. The confessional statement qualifies to be relied upon by

the Court. I admit Exhibit N1 as evidence to be relied upon in the determination of the guilt of the Appellant. The trial Court failed in its duty in this regard.

The reconciliation account tendered and relied upon came after the receipt of the money and the confession, it is therefore an afterthought. Furthermore, the Evidential Burden having shifted was not discharged by the Respondent concerning the second count and the $300,000.00. The Respondent also said the payment to his daughters was appreciation from Himma Abubakar, appreciation is simply the corrupt act which fits into the allegation made by the Appellant. It makes it more so when transaction is done through proxies. The same Respondent who contended that there was no valid contract between SEI Nig Ltd and upon which the trial Judge discharged him, vigorously testified that while assisting Himma Abubakar he incurred expenses on behalf of SEI Ng Ltd. This was in respect of certain trainings for Nigeria Airforce pilots and he failed to present a valid contract upon which he assisted Himma Abubakar. A party is not allowed to approbate and reprobate at the same time. The sum of $300,000.00 was not

legitimate income from his employers. Mr. Himma Abubakar was not Respondent’s employer and had no business paying the Respondent any sum as appreciation. This is coming at the backdrop of the admission by the Respondent that he got more than he was allegedly entitled to. On count 2, I find for the Appellant that it proved the allegation beyond reasonable doubt. I find the Respondent guilty of count 2.

On counts 1, 3 and 4, there was no direct admission and even though it was established that the Respondent got cars paid for by SEI Nig Ltd (Himma Abubakar) and delivered by Cosharis. The Respondent explained that it was refund for money expended on behalf of Himma Abubakar. In as much as the entire transaction looks suspicious because of failure to show evidence of the source by the Respondent, the Appellant also failed to do the needful, as an investigative agency with unfettered access to bank accounts for private individuals and official bodies, they should have tried to know from where the Respondent got such large sums of money to assist Himma Abubakar, being a public officer who is on a regimented salary (NAF). Failure to do so created a gap and

a doubt which must inure to the benefit of the Respondent. The money could have come from Nigeria Airforce funds or the Respondent. The statement that the money was from Respondent’s personal funds was not verified. Evidence of the source would have hit the nail on the head in either proving the Respondent guilty inspite of the explanation or proving him innocent on the ground that he truly assisted the said Himma Abubakar. It is only on this ground that I find that count 1, 3 and 4 were not proved beyond reasonable doubt.

Flowing from above therefore, the Respondent is discharged and acquitted on counts 1, 3, and 4 of the charge but guilty of count 2. Considering the circumstances of the case and the relationship between the Respondent and the said Alhaji Himma Abubakar which was not strictly official but more of a private arrangement in which the Respondent was an agent, the sentence cannot come under Section 17(C) of the Corrupt Practices and other Related Offences Act. I will sentence the Respondent under Section 19 (C) of the said act which provides a sentence of Five (5) years Imprisonment or an option of fine of not less than N200,000.00.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Considering the circumstances and the facts in this Appeal, particularly the fact that the Respondent quickly refunded the sum of $300,000.00 there is no history of previous conviction before the Court. Therefore, in exercise of the Courts discretion, the Appellant is hereby sentenced to 2 years imprisonment and in the alternative, an option of N500,000.00 fine.

The Appeal succeeds in part. The Judgment of the trial Court is hereby altered by the conviction on count two as the discharge and acquittal is sustained on counts 1, 3 and 4.

ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother YARGATA BYENCHIT NIMPAR, JCA.

My Learned Brother has dealt exhaustively with all the issues raised in this appeal and I adopt his judgment as mine. These findings and conclusions flowed from the evidence adduced at the trial.

It is for this reason and the more detailed reasons given by my Learned Brother YARGATA BYENCHIT NIMPAR, JCA that I also find that this appeal succeeds in part.
I also abide by the consequential order contained in the lead judgment.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

SYLVANUS TAHIR, with him, HADIZA AFEGOMA Esq. and AISHA MOHAMMED Esq. For Appellant(s)

ADEDAYO ADEDIYI Esq., with him, MONDAY AYEH Esq., I. E. OJIAH Esq. and C. E. OGBOZOR Esq. For Respondent(s)