Criminal Breach of Trust

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AMIRU SANUSI, J.S.C.(Delivering the Leading Judgment): This is an appeal against the judgment of Court of Appeal, Ilorin division (Coram- Chidi Nwaoma Uwa, Uchechukwu Onyemenam and Musa Hassan Alkali, [of blessed memory) JCA hereinafter referred to as the lower Court or below) delivered on 18th December, 2014, wherein the learned justices of the lower Court which affirmed the decision of the Kwara State High Court (the trial Court) delivered by Abdul Gafar J. on 11th February, 2014.
The appellant herein, was arraigned before the trial Court on four count charge as set out below:
COUNT 1
That you Adeyinka Ajiboye, between September 2008 and July 2009 at llorin within the jurisdiction of this Honourable Court, being an Automated Teller Machine Custodian of Guaranty Trust Bank committed theft in the sum of N46,201,100 (Forty six million, two hundred and one thousand, one hundred Naira) in the possession of the Guaranty Trust Bank and thereby committed an offence punishable under Section 289 of the Penal Code.
COUNT 2
That you ADEYINKA AJIBOYE between September 2008 and July 2009, at llorin, within the jurisdiction of this Honourable Court being an Automated Teller Machine custodian in the employment of Guaranty Trust Bank, committed theft by stealing property to wit the sum of N25,000,000.00 (Twenty five million Naira) in the possession of the Guaranty Trust Bank and thereby committed an offence punishable under Section 289 of the Penal Code.
COUNT 3
That you ADEYINKA AJIBOYE, between September, 2008 and July 2009 at Ilorin within the jurisdiction of this Honourable Court, being a servant in the employment of Guaranty Trust Bank and in such capacity entrusted with the sum of N46,201,100.00 [Forty Six million, two hundred and one thousand, one hundred Naira) being part of the sum to be loaded in the Automated Teller Machine (ATM) committed criminal breach of trust in respect of the said sum and thereby committed an offence punishable under Section 314 of the Penal Code.
COUNT NO.4
That you ADEYINKA AJIBOYE between September 2008 and July 2009 at Ilorin within the jurisdiction of the Honourable Court being a servant in the employment of Guaranty Trust Bank and in such capacity entrusted with the sum of N25,000,000.00(Twenty five million Naira only) being part of the sum to be loaded in the Automated Teller Machine (ATM), committed criminal breach of trust in respect of the said sum and thereby committed an offence punishable under Section 314 of the Penal Code”.
Upon arraignment, each of the four counts was read and explained to the accused/appellant by the trial Court and he denied committing each of them. Trial thereupon proceeded in earnest. In an effort to prove its case against the appellant, the prosecution, now respondent, called seven witnesses and tendered several exhibits which included voluntary confessional statements made by the appellant which were admitted in evidence after a trial within trial. On his part, the appellant testified for his defence without calling any witness. After the close of the defence case, learned counsel for the parties addressed the trial Court which later adjourned the case for judgment. In the end, the trial Court in its judgment found that the prosecution/respondent had proved its case beyond reasonable doubt and convicted the appellant in the following term and also made forfeiture order as follows:
“Consequently, I order that the accused pay compensation to GTbank Plc on the sum of N21 million which he admitted to have filched from the bank, less than amount of N15 million that PW7 said was recovered. The accused shall pay the sum of N10,000,000 to GTbank Plc.
I also exercise the power under Sections 19 & 20 of EFCC Act to order the forfeiture to GTbank Plc property admittedly built by the accused from the proceeds (sic) of the fraud.
I hereby sentence the accused to a term of 3years without option of fine in respect of count 2 while I sentence him to a term of 3years in respect of Count 4 both terms to run concurrently.”
The appellant herein, became miffed by the judgment of the trial Court and he thereupon appealed to the Court below vide a notice of appeal dated and filed on 5th March, 2014 which contains seven grounds of appeal. Out of the seven grounds of appeal, the appellant decoded four issues of determination which read as below:
(1) Whether the learned justices of the Court of Appeal were right in their failure to express the reasoning for affirming the judgment of the learned trial judge (Ground 3).
(2) Whether the Appellant’s property is liable to be

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forfeited despite the term of sentences and payment of compensation orders made against him (Ground 4).
(3) Whether the Court of Appeal was right in affirming the decision of the trial Court admitting the statement credited to the Appellant as his confessional statement worthy of being relied upon in convicting the appellant. (Ground 2)
(4) Whether in view of the circumstances of this case, the appellant’s conviction was rightly affirmed by the Court of Appeal (Grounds one & five).
It needs to be stated that the appellant also filed Appellant Reply brief on 23/2/2018 which was deemed filed on 28/2/2018.
On its part, the respondent filed its brief on 15/2/2018, deemed filed on 28/2/2018 which was settled by Rotimi Oyedepo Iseoluwa. In the said brief of argument it also encapsulated four issues for determination which are reproduced hereunder:
A. Whether having regards to the evidence adduced by the respondent before the trial Court, it can not be said that the respondent proved its case against the appellant beyond reasonable doubt to justify the judgment of the Court of Appeal affirming the conviction of the appellant.

B. Whether the judgment of the Court of Appeal is liable to be set aside by this Honourable Court on the ground that the Court of Appeal failed to give reason for affirming the judgment of the learned trial judge.
C. Whether having regards to the evidence adduced by the prosecution before the trial Court, it can be said that Court of Appeal erred in law in agreeing with the learned trial judge that the appellant volunteered his extra-judicial statement voluntarily.
D. Whether the Order of Restitution made by the learned trial Court and upheld by the Court of Appeal was not properly made so as to enable this Honourable Court declare same null and void.”
Closely looking at the two set of issues for determination raised by the learned counsel for the parties, I am convinced that the issues encapsulated in the appellant’s brief of argument have adequately subsumed all the issues raised in the respondent’s brief of argument. As elegantly couched as they are, I choose to be guided by the issues raised by the appellant in determining this appeal and in doing so I shall consider them seriatim, of course, after summarising the submissions of learned counsel on each of them.
SUBMISSION OF COUNSEL ON ISSUES FOR DETERMINATION
ISSUE NO.1:- This issue deals with alleged failure of the Court below to give reasons in affirming the judgment of the trial Court.
The learned counsel to the appellant argued that there was no appraisal of the case before the Court below and that the Court of Appeal merely restated arguments of both counsel and the position of the trial Court without giving its input or reasons for agreeing with the position of the trial Court. He cited the case of CHIEF GREAT OGBORU & ANOR v EMMANUEL UDUAGHAN & 2 ORS (2012) 2-3 SC 66 at 92-94 lines 30-32.
He submitted that the judgment of the Court below occasioned a miscarriage of justice, in that the basic rule of law that a judgment must have reasons for the judge’s conclusion in the judgment was not complied with. He then urged the Court to resolve the issue in favour of the appellant.
ISSUE NO.2
This issue queries whether the appellant’s property was still liable to be forfeited despite the term of sentence and order for payment of compensation.
The learned counsel to the appellant argued that the learned trial judge had no power under Sections 19 and 20 of the EFCC Act, to forfeit the appellant’s property to GTBank Plc, when the appellant has been sentenced to a term of imprisonment and was equally ordered to pay compensation to GTBank. He quoted the provision of Sections 19 & 20 of the EFCC Act and submitted that there is no power conferred on the trial Court to forfeit the property of the appellant to any person or body. He contended that for the trial judge to exercise the power of forfeiture under these sections, the appellant must have been charged under the EFCC Act which is not the case here as the appellant was charged under the Penal Code. He submitted further, that it would amount to double jeopardy having convicted the appellant and having ordered the payment of compensation to GTBank Plc in the sum of N25,000,000.00 which he admitted to have taken from the Bank. He urged the Court to resolved this issue in favour of the appellant.
ISSUE NO.3
This issue relates to whether the Court below was right in affirming the decision of the trial Court admitting the statements credited to the appellant as his confessional statements and worthy of being relied

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upon in convicting the appellant.
He submitted that Exhibits. P5 and P21 being purported confessional statements of the appellant are not legal evidence as they are neither admissible nor worthy of being relied upon in convicting the appellant. He argued that the statements were wrongly admitted, notwithstanding, the conduct of trial within trial to determine the voluntariness of the said statements.
In respect of the 1st trial within trial, he referred to the cross examination of PW2 at pages 170 and 171 of the record and argued that DSP Ronke Oyeleyin, the superior police officer before whom the appellant was said to have been taken, ought to have been called as a witness at the trial within trial. He therefore submitted that failure of the prosecution to call the said superior police officer as a witness, is fatal to the prosecution’s case and thereby renders the purported statements inadmissible and cannot be used against the appellant. He also argued that the appellant was not obliged the opportunity of exercising his right of the presence of his counsel, despite a demand for it. He referred to the judgment of the trial Court at page 183 of the record and argued that right to a counsel is a constitutional right and failure to allow the appellant access to his lawyer before recording his statement is not a matter to be treated with levity.
On Exhibit P21, he submitted that the second statement was wrongly admitted. He referred to the re-examination of PW2 at page 193 of the record and submitted that requesting the appellant to write the statement contradicts the fact that he wrote the statement voluntarily as the statement requested from an accused can never be said to be voluntary. He cited the case of THE STATE v MATI AUDU (1971) NNLR 91 @ 92 where it was held that statement made by an accused on demand cannot be said to have been made voluntarily. He argued that the confessional statements of the appellant did not pass the test of admissibility i.e
(1) whether it is corroborated
(2) whether there is anything outside the confession to show that it is true.
(3) whether the confession is possible e.t.c.
Learned appellant’s counsel argued that one HAKEEM ADEFIOYE who was said to be the appellant’s supervisor and who suspected the appellant of suppressing funds meant for ATM; was never called as a witness to corroborate the facts of commission of the offence. He urged the Court to expunge the confessional statements from the record and to resolve the issue in favour of the appellant.
ISSUE NO.4
Issue no.4 relates to whether in view of the circumstance of this case, the appellant’s conviction was rightly affirmed by the Court below. On this issue, the learned counsel for the appellant argued that from the evidence of the prosecution’s witnesses and that of the appellant, the appellant was not the only ATM custodian in the GTBank, GRA branch, Ilorin and that since other custodians have not been accused of stealing cash meant for ATM, the appellant also should not have been accused, since what is good for the goose is also good for the gander. He submitted that the basis of suspicion has collapsed with the evidence on record to the effect that other staff of the GTBank also have access to the vault and feed the ATM. He submitted that from the totality of evidence on record, the respondent failed woefully to prove the offences alleged against the appellant. He then urged the Court to resolve this issue in favour of the appellant and to allow this appeal.
RESPONDENT COUNSEL’S SUBMISSION
In response to the argument of the appellant’s counsel, the learned to the respondent as I stated earlier also submitted four issues for the determination of this appeal.
ISSUE NO.A
Issue no.A questions whether the respondent had proved its case against the appellant beyond reasonable doubt having regard to the evidence on record.
The learned counsel to the respondent submitted that it has placed enough evidence before the trial Court and the Court below to show that the appellant was in the employment of the Bank and that he was in charge of ATM when the alleged offences were committed. He referred to Exhibit P5 at page 30 of the record and submitted that since facts admitted need no further proof, the respondent had discharged the burden of proof placed on it by law. He argued that it was in evidence before the trial Court, that the consent of the bank was not sought and obtained to enable the appellant move the sum of N25,000,000 and that has been demonstrated through Exhibit P1 which is the petition to the EFCC and the evidence of all the prosecution witnesses. He argued

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further, that the respondent has been able to prove various fraudulent intentions of the appellant to cause wrongfully gain to himself or wrongful loss to the bank by removing money meant for the ATM and surreptiously keeping same in his car which he eventually lodged in his account and those of his relations i.e. the wife, daughter and sisters accounts. He referred to Exhibits P2, P3 and P4 and argued that the total cumulative difference of over N46,000,000 were outstanding which the PW1 to PW7 had testified not to have being occasioned by system -error, but due to suppression of ATM cash. He cited the case of Onogwu v State(1995) 6 NWLR (pt.401)276 at 291.
He submitted further that in view of the admission of the appellant as contained in Exhibits P5 and P21, the learned trial judge is justified to have convicted the appellant. He referred to the judgment of the trial Court at pages 280-281 and submitted that it is the duty of the trial Court or tribunal to see, hear and assess each witness as to whether he should believe him or not and that where the trial Court has discharged that responsibility, the appellate Court will not interfere with such findings of the trial Court, unless they are shown to be perverse or unsupported by evidence. He then urged the Court to resolve this issue in favour of the respondent.
ISSUE NO.B
Issue no.B relates to whether the judgment of the Court below is liable to be set aside on the ground of failure to give reasons for affirming the judgment of the trial Court. The learned counsel to the respondent submitted that once the appellate Court affirms the decision/findings of the trial Court, the reason or findings of the trial Court is deemed to have been the reasoning of the Court of Appeal, He referred to pages 392-420 of the record and submitted that the Court of Appeal is on perfect pedestal in affirming the findings of the learned trial judge. He urged the Court to resolve this issue in favour of the respondent.
ISSUE NO.C
This issue deals with whether having regard to the evidence adduced by the prosecution, it cannot be said that the appellant volunteered his extra judicial statements. He argued that the respondent herein, proved its case in the trial within trial before the trial Court, to justify admitting Exhibits P5 and P21. He submitted that the recording of the statements of the appellant conforms with the formal requirement for recording of the statements of the appellant. It also conforms with the formal requirement for recording of the extra judicial statements. He contended further, that failure to call DSP Ronke Oyeleyin, the superior police officer before whom the appellant confirmed that he volunteered his statement is not fatal to the prosecution’s case at the trial within trial as the evidence of the investigating police officer who cautioned and obtained the statements of the appellant has confirmed that. He submitted that the practice of taking an accused person along with his confessional statement to a superior police officer who will read over and interprete same to him, is not a requirement of law and failure to comply with such practice will not render a confessional statement inadmissible. He cited the case of DIBIE v THE STATE (2007)9 NWLR (pt.1038).
It was also submitted that the prosecution is not mandated to call all its listed witnesses but only material witnesses. See ATTAH v STATE [2009)15 NWLR (pt.1164)Â pg 284 at 304. He therefore submitted that there was nothing material that DSP Ronke Oyeleyin if called, would have denied the role she played in her evidence. He cited the case of EDOHO v STATE (2004) 5 NWLR (pt.865) pg 17 at 51. In addition, the learned counsel urged the Court to hold that the respondent proved beyond reasonable doubt that the appellant volunteered Exhibits P5 & P21 in view of the evidence adduced by the prosecution’s witness in trial within trial.
ISSUE NO.D
This issue deals with whether the order of restitution made by the trial Court was not properly made.
He submitted that by the combined provisions of Section 78 of the Penal Code and Section 365 of the Criminal Procedure Code, the learned trial judge had the requisite jurisdiction and power to order restitution to the victim of crime and that no limit has been set on the amount that a trial judge upon conviction, can award to the victim of the crime by way of compensation. He cited the case of MARTINS v COP (2013) 4 NWLR [pt.1343) page 25 at 47 paragraph F-GG.
On the contention of the appellant that the trial Court exercised the power of restitution under a wrong law by relying on Sections 19 & 20 of the EFCC Act 2004, he

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submitted that a valid order made by a competent Court of law does not become invalid, simply because it was made under a wrong law. He referred to the case of HENRY STEPHEN ENGINEERING CO. LTD v COMPLETE HOMES ENTERPRISES NIG. LTD (1987) All NLR pg 28 at 37. Since the appellant had acquired the property with the proceeds of the crime for which he was convicted, the trial Court also has the power under the provision of Section 20(1) (b) of the EFCC Act, to order the forfeiture of the said property to the Federal Government of Nigeria. He argued that the provision of Section 7 of the EFCC Act, 2004, empowers the EFCC to investigate and prosecute economic and financial crimes under the existing legislation such as the Penal Code as in this instant case, and to that extent, the EFCC Act is clearly applicable to this appeal and the order of forfeiture of the appellant’s property will not amount to double jeopardy since it is liable to be forfeited under Section 20 of the EFCC Act. He cited the cases of ONWUDIWE v FRN (2006) 10 NWLR (pt.988) 382 at 411 -412, 420 & 425 and EGUNJOBI V FRN (2002) FWLR {pt. 103) 896-923.
He contended that even if the property cannot be forfeited to the victim of the offence, it cannot be said that the Court lacks the jurisdiction to order forfeiture of same to the Federal Government as stipulated in Section 20 of the EFCC Act, 2004. He therefore urged the Court to uphold the order of the trial Court, or in the alternative, to vary the order by directing the property to be forfeited to the Federal Government so as to prevent the appellant benefiting from the procedes of the crimes for which he was rightly convicted.
On the whole, he urged this Court to dismiss the appeal.
REPLY BRIEF OF THE APPELLANT
The Reply of the appellant revolves around the issue of facts. He also argued on the issue of contradiction in the evidence of PW1, PW3 and PW4 on how the money was taken from the appellant’s accounts which issue did not arise from the issue or issues formulated and considered at the Court below. In other words, it is too late in the day for the appellant to introduce a new issue at this stage.
The reply brief also contains re-argument of issues that had already been argued in the appellant’s main brief and is fine-tuning of earlier submissions. This Reply brief according to the respondent’s counsel serves no useful purpose as it has carried more than what is contemplated within the meaning of a Reply brief. It does not deserve countenance.

RESOLUTION OF ISSUES FOR DETERMINATION
ISSUE NO.1
As I posited supra, this issue relates to the alleged failure by the Court below to express its reasons for affirming the decision of the trial High Court in the judgment now appealed against. The complaint of the appellant’s learned counsel is that the Court below failed to appraise the appeal and also did not give its reason for its resolution of the issues. He added that the lower Court merely resolved the issues by quoting the passages in the trial Court’s findings.
It is noteworthy that the appellant in his appeal before the lower Court raised four issues for determination. Admittedly, the lower Court in its judgment quoted verbatim the submissions of the learned counsel to the parties and followed same with the findings of the trial Court on each of the issues and afterwords it (the lower Court) considered the submissions of learned counsel to the parties. The lower Court in its approach virtually repeated and quoted all the submissions of the learned counsel word by word and reproduced the findings of the trial Court on each of them.
I have closely perused the judgment of the lower Court now appealed against. My view is that it will not be very correct to say that the lower Court merely resolved the issues without appraising them or without giving reasons for its resolution in all the issues raised before it. To my mind, what the lower Court did by quoting the findings of the trial Court was that it had approved same or more or less adopted or endorsed same as its own, even though it did not expressly state so. For instance, on issue No.1 before the lower Court which raised the issue of proof of the offence the appellant was charged with, the Court below in its conclusion or resolution of that issue stated at page 394 of the record as follows:
“It is from my view that the prosecution has successfully discharged the burden placed on it by proving all the essential elements of the offences preferred against the appellant beyond reasonable doubt. I therefore rest resolution in favour of the respondent against the appellant.”

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On Issue No.2 before the lower Court, the Court did not however make any finding but merely stated that it resolved that issue in favour of the respondent after it extensively quoted almost verbatim, all the submissions by learned counsel to the parties at the trial Court and the findings and conclusion arrived at by the trial Court that the issue related to the admissibility of the extra judicial statement made by the appellant. On the third issue dealing with the order of forfeiture or compensation made by the trial Court, the lower Court in treating the issue also adopted the same procedure as done in the first and second issues supra. However in treating this issue the Court below unlike what it did on issue No.2 supra, it can be said that it really appraised or evaluated the submission when it stated at pages 410 to 411 as below:-
“It is noted that the appellant’s major contention was that the learned trial judge exercised the power of restitution under a wrong Law by relying on Sections 19 and 20 of the EFCC Act, 2004. The answer to that is the learned trial judge was right to forfeit as stipulated under Section 20(1) (b) of the EFCC Act, 2004. Section 78 of the Penal Code reads thus:
“Any person who is convicted of an offence under this Penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment”.
Based on the above, the learned trial judge was right in relying on Sections 19 and 20 (1) (b) of the EFCC Act to order the forfeiture of the properties to Guaranty Trust Bank Plc having ordered him to pay compensation to GTBank Plc. Also Section 78 of the Penal Code to cure the whole defect of the proceeds (sic) of the crime.
Issue three is here by resolved in favour of the respondent against the appellant.”
To my mind, the above represents the appraisal and views of the lower Court on the third issue as opposed to the appellant’s counsel’s grouse that the lower Court did not give reasons for resolution of the said issue.
With regard to the fourth and last issue for determination raised before the lower Court dealing with evaluation of evidence by the trial Court the Court below also adopted the same procedure it earlier applied in its treatment of the other previous issues. Hence the lower Court extensively quoted the findings of the trial Court after capturing the submissions of learned counsel. By way of conclusion, it stated that it upheld the judgment of the trial judge and it went further to say that it supported it with the principles in the case of Fatai Vs State (2013) 10 NWLR (pt.1361) 4 and after quoting the principles it relied on extensively, it finally stated that based on the said reasons, it resolved the issue in respondent’s favour. It is my view that the lower Court also based its reasoning on the case of Fatai V State (supra) and that is, to my mind, an adequate appraisal of the submission made by the counsel to the parties before it (lower Court).
Having posited above, it needs to be stressed that judgment writing is an art of itself and there could be numerous ways or methods of writing judgment. The methods normally adopted by judges may vary from one judge to another. The variation could be as many as there are numerous judges and each may have or may adopt the method he wishes to adopt. There is really no particular style approved for judges to adopt in judgment writing since as I stated supra, judgment writing is an art of itself as such there can be multiplicity of ways or method of writing it. See Garuba v Yahaya (2007) 3 NWLR [pt.1021) 390; Mbani v Bosi & Ors (2006)11 NWLR (pt.991)800. In fact this Court in the case of Alfred Usiobaifo & Anor Vs Christopher Usiobaifo & Anor (2005)1 SC 60 the Court had this to say per Niki Tobi JSC (of blessed memory).
“Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in field of mathematics. A judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief argument of counsel, if counsel are in the matter, reactions of the judge to the arguments and final order, an appellate Court can not hold that the judgment is not properly written.”
In this instant case I have stated supra, that the learned justice of the Court of Appeal who wrote the lead judgment had in the said judgment summarised the submissions of the learned counsel for the parties and also relied on or endorsed the findings of the trial Court and adopted or

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endorsed them before resolving the issues as highlighted above. That in my view, could be his own style, approach, or method of writing judgment. In any case, he had considered all the issues raised and resolved them and had drawn conclusions or general inference before resolving those issues in favour of the respondent. I am unable to say that by the approach adopted by the learned justice of the penultimate Court who wrote the judgment had by the said judgment caused miscarriage of justice on the appellant which could be said to have vitiated the judgment in question. See David Omotola & Ors v The State (2009) 2-3 SC 7 or (2009)7 NWLR [pt.1139)148. I shall add that, since the lower Court in its judgment now appealed against, had endorsed or affirmed the findings of the trial Court, such findings in my view can be deemed to be the findings of the lower Court since it adopted the judgment of the trial Court. For these reasons I shall resolve this issue against the appellant.
ISSUE NO.2
This issue relates to the propriety of the order for forfeiture by the trial Court which was endorsed or affirmed by the lower Court. In the fore paragraph of this judgment, I reproduced the trial Court’s order for forfeiture at the end of its judgment wherein, the trial Court stated thus:
“I also exercise the power under Section 19 and 20 of EFCC Act to order the forfeiture to GTBank Plc the property admittedly built by the accused from the proceeds (sic) of the fraud…”
It is the contention of the learned appellant’s counsel that the trial judge had no power to exercise such power under Sections 19 and 20 of EFCC Act. The further contention or grouse of the appellant’s counsel was where the lower Court stated in its judgment “that the contention was that the trial judge exercised the power of restitution under a wrong law by relying onSections 19 and20 of the EFCC Act 2004”. I must say, that there is no gain saying that the trial Court in its judgment relied on Sections 19 and 20 of the EFCC Act of 2004in giving its forfeiture order. The important thing is whether such order for forfeiture made was grantable in accordance with any law. This is so because a Court order can not be vitiated or does not become null and void simply because the Court relied on a wrong law in making. Such order is valid provided that there is any law that backs the grant of such order. As the appellant was tried at the trial Court for committing an offence or offences under the Penal Code and the same penal code by its Section 78 and also by Section 365 of the Criminal Procedure Code, gives a trial Court power to make order of forfeiture or compensation to any party after convicting an accused person such forfeiture order remains valid. In Martins v COP (2013) 4 NWLR (pt.1343) 25 Mahmud Mohammed JSC [as he then was) had this to say on Page 47:-
“what is significant is that under either Section 78 of the Penal Code which Provides specifically for compensation arising from the conviction for offences and the Penal Code and so applicable to the instant case, or under Section 365 (1) (b) which is general provision in respect of all convictions under any law no limit has been set as to the amount the Court, on convicting the offender can award the victim of the offence by way of compensation.
See also Mafa v State (2013) 3 NWLR (pt.1342) 607 at 622/623.
It is therefore my considered view, that the lower Court was correct in endorsing or affirming the trial Court’s order of forfeiture/compensation as it had such power both under Section 78 of the Penal Code and Section 365 of the Criminal Procedure Code, notwithstanding that it stated that it granted such order under Sections 19 and 20 of EFCC Act 2004. That will not vitiate the order or render the order null and void. This issue is also resolved against the appellant herein.
ISSUE NO.3
On this issue the appellant queries whether the lower Court was right in affirming the decision of the trial Court admitting the extra judicial statement of the accused/appellant. It needs to be stated here, that during the proceedings, the prosecution/respondent sought to tender the confessional statements of the accused/appellant but the defence objected to its admissibility on the ground that it was not made voluntarily by the appellant as he was tortured before he made them. The trial Court thereupon, ordered that a trial within trial be conducted. At the mini-trial, the IPO who recorded the statements testified for the prosecution denying that any torture was meted on the accused and stressed that the latter made it voluntarily. On his part, the appellant

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testified in the mini trial even though in his testimony he delved into mere irrelevancies without clearly addressing the issue of the type of torture he alleged was meted on him. In its considered ruling, the trial Court found that the accused made the statement voluntarily and admitted them in evidence.
Basically, the grouse of the learned appellant’s counsel are three folds, namely:
(a) That the statement Exhibits P5 and P27 were not made voluntarily
(b) That he made the statements in the absence of his counsel
(c) That the statements were written on demand.
Another complaint of the appellant is that one Ronke Oyeneyin who was the SPO who endorsed the statement in question was not called to testify at the trial within trial.
It needs to be restated here, that the law is well settled that a free and voluntary confession of guilt by an accused be it judicial or extra judicial if direct, and positive and properly proved, is sufficient to ground a conviction once the trial Court is satisfied with its truth. See Odeh v Federal Republic of Nigeria (2008) 3-4 SC 147; Silas Ikpo vs The State (1995)33 LRCN 587; Akinmoju v The State (2000) NSCQR vol.2 (pt.1) 90 at 93.
The burden is always on the prosecution to prove that a statement was made voluntarily. In this instant case, the trial Court after the trial within trial found that the statement was voluntarily made by the accused/appellant.
On the issue of endorsement of the said statement by an SPO, it needs to be emphasised here, that the practice of having an SPO to verify and confirm that a confessional statement of an accused was voluntarily given, does not have the force of law. It is merely a desirable practice, therefore any confessional statement which was not so verified should not of necessary without more, be viewed with any air of suspicion. In other words, the fact that an SPO was not called to testify as in this instant case [which even the reason for her absence was given) will not affect the admissibility or credibility of the endorsement of Exhibits P5 and P21. See the case of Dibie v State(2007) 2 NSCQR 1431.
In any case, it is even not the law that the prosecution must call host of witnesses to establish its case. All it is required to do is to call witnesses who are material and would assist it in proving its case.The appellant in this case had confirmed that he was taken to Ronke Oyeneyin’s office who endorsed the statement after same was read over to him before he signed it. The prosecution had in this case given reason that she was not called to testify because she was away abroad. On the alleged absence of his counsel when it was recorded, I think that reason is not cogent as it is not incumbent upon the prosecution to record an accused statement only in the presence of his defence counsel. The important and essential thing is that words of caution must be administered to the accused person to his understanding and to endorse same before he decides to make the statement. Evidence abounds that the words of caution were duly administered in the exhibits before they were duly signed. It is also noted by me, that the second confessional statement Exhibit 21, was made by the appellant to his employers. Same was also recorded under words of caution and it was also subjected to a trial within trial, conducted by the trial Court before it was admitted in evidence by the trial Court which later found that it was also voluntarily made by the accused/appellant.
Finally, it is my view that both confessional statements were admitted after the proper procedure was followed. I have no reason to depart from the lower Court’s view affirming the admissibility of the said statements which I also consider as direct and positive. The trial Court therefore rightly relied and acted on them. This issue is again resolved against the appellant.
ISSUE NO.4
The fourth issue for determination raises the question whether, given the circumstances of this case, the lower or court below was correct in affirming the conviction of the appellant by the learned trial judge.
It is clear from the record of appeal that the learned trial judge convicted the appellant of the second and fourth counts namely theft of the sum of N25,000,000.00 said money was owned by the Guaranty Trust Bank Plc, contrary to Section 286 of Penal Code punishable under Section 289 of the Penal Code and count No.4 namely, the offence of Criminal breach of trust by a clerk or servant contrary to Section 311 of the Penal Code punishable under 314 and sentenced him to three years imprisonment on each of the two counts. The trial Court however found

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that the prosecution failed to prove the first and third counts and thereby acquited him on each of them.
The question posed by this issue is whether the offences in counts two and four were proved beyond reasonable doubt by the prosecution to warrant the conviction by the trial Court and the subsequent affirmation of the conviction on each of them by the Court below. The stance of the learned counsel for the appellant is that those offences were not proved by the prosecution against the accused/appellant for the reasons he gave in his brief of argument as summarised supra.
On the first count of theft by a clerk or servant contrary to Section 289 of the Penal Code, the prosecution in order to secure a conviction must prove the underlisted ingredients of the offence, namely:
(a) That the time of the commission of the offence the accused is a clerk or servant and was employed in that capacity by a person in whose possession the stolen property was.
(b) That the property was a movable one.
(c) The property was in possession of the employer
(d) That the accused moved the property whilst in the possession of that employer.
(e) That he did so without the consent of the employer
(f) That he did so in order to take the property out of the possession of the employer
(g) That he did so with intent to cause wrongful gain to himself or wrongful loss to the employer.
On the first ingredient supra, evidence abound that as at the time of the commission of the offence, the appellant was under the employment of the complainant bank the Guaranty Trust Bank Plc, which no doubt, was in possession or is the owner of the sum of money he was alleged to have stolen. In his voluntary confessional statement the appellant stated that he worked with Trade Bank before he moved to Guaranty Trust Bank in 2006 in Lagos before being transferred to Ilorin. As regards the second ingredient, it can not be disputed that the amount stolen was certainly a movable property. Also on the third ingredient that the property must be in possession of the employer. The testimonies of PW1, PW4, PW5, PW6 and PW7 had revealed the procedure of operation of Automated Teller Machine (ATM) and on how money could be taken from the vault of the bank. Their testimonies had established that the money stolen i.e N25,000,000.00, which was owned by the GTBank, the accused person’s employer. With regard to the 4th and 7th ingredients, ample evidence was led by the prosecution in proof of how the accused stole the property from the ATM machine and the accused in his confessional statement, had clearly exonerated PW4, PW5, PW6 and PW7 who at one time or another relieved him from his duty when he categorically stated that they were not involved in the theft.
As for the sixth ingredient, namely whether he was responsible for the theft of the money, adequate evidence was led to show that the appellant did steal the sum of money and used the theft proceeds to buy various movable and immovable properties some of which were traced and recovered. Regarding the seventh element of the offence, the attitude of the appellant clearly revealed his fraudulent and guilty intention of causing wrongful loss to his employer, and to cause wrongful gain to himself. Also there is no doubt that all these acts were done without the consent of the employer.
It is my considered view therefore, that the prosecution advanced adequate evidence in proof of the allegation of of theft against the accused/appellant which said evidence were neither debunked nor controverted. The accused failed to debunk such evidence or explain that he was not culpable. The trial Court was therefore correct in convicting the accused/appellant of the offence of theft contrary to Section 289 of the Penal Code and was correctly convicted as charged. The Court below can also not be faulted for affirming the conviction and sentence of the appellant by the trial Court.
The fourth count against the appellant was one for the offence of criminal breach of trust by a clerk or servant contrary to Section 314 of the Penal Code punishable under the same section. Section 314 of the Penal Code reads thus:
Section 314 of Penal Code states thus:
“Whoever being a clerk or servant or employed as a clerk or servant and being in any manner entrusted in such capacity with property or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine.”
From the wordings of the above provisions, the elements that must be proved by the prosecution in

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order to obtain conviction are as follows:
(i) That the accused is a clerk or a servant
(ii) That in such capacity he was entrusted with the property in question or dominion over it.
(iii) That he committed criminal breach of trust in respect of such property.
See Onogwu v State (1995)6 NWLR (pt.401)276 at 291.
I must say, that in proof of the first ingredient supra, the prosecution witnesses nos.1 to 7 clearly testified that the appellant was a servant of the Guaranty Trust Bank Plc, (the complainant) as at the time material to this case. Their testimonies in that regard, were never challenged. Also the appellant testified at the trial Court in that regard too. As regards the second ingredient of entrustment, evidence abounds that in his capacity as the bank’s servant, the appellant was entrusted with the custody of the Automated Teller Machine [ATM) and had, as part of his duty, been entrusted with cash to fill the ATM machine on week days and weekends. Evidence was also adduced that the cash loaded in the machine were filfered without the consent of the employer. The appellant in his statement Exhibit 5 attested to or confirmed that piece of evidence when he admitted, inter alia, that during week days he took part of the cash unloaded from the machine and deposited them into his sister’s and wife’s accounts.
All these pieces of evidence led by the prosecution/respondent were not controverted or challenged. The confessional statements of the appellant were adequately corroborated by the testimonies of the prosecution witnesses. Other corroborative evidence to the confessional statements also include the properties purchased with procedes of the stolen money, as well as the money traced to the accounts of the appellant and of his siblings. In the light of the above, I am fully convinced that the two offences were duly proved by the prosecution/respondent against the appellant beyond reasonable doubt. The trial Court therefore rightly convicted the appellant of the said offences. On its part, the lower Court was also correct or faultless, when it affirmed the conviction and sentence of the appellant of the offences charged. This last issue is therefore hereby resolved against the appellant.
It is also pertinent to state that in this case there are concurrent findings of both the trial and lower Courts. This Court is always hesitant in interfering with or tampering with concurrent findings of two lower Courts, except on special or exceptional circumstances such as where the findings are perverse or where there is misconception of facts or misapplication of law. None of these exist in the instant case, hence I have no cause to interfere or tamper with them.
In the result, having resolved all the issues raised and canvassed in this appeal by learned counsel to the parties, the ultimate result is to adjudge this appeal as meritless. It fails and is accordingly dismissed by me. I affirm the judgment of the Court of Appeal, Ilorin division (the lower Court) which had earlier affirmed the judgment of the trial Court. Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I have had a preview of the leading judgment of my learned brother Sanusi, JSC. I agree with him that there is no merit in the appeal.
I hereby also affirm the judgment of the Court of Appeal.
Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by learned brother, Amiru Sanusi JSC and to register my support in the reasonings from which the decision came about I shall make some comments.
This is an appeal against the judgment of the Court of Appeal, holden at Ilorin (Coram: Chidi Nwaoma Uwa, Uchechukwu Onyemenam and Musa Hassan Alkali JJCA) delivered on the 18th day of December, 2014 wherein their Lordships affirmed the decision of the Kwara State High Court of Justice, holden at Ilorin per M. Abdul Gafar J. delivered on the 11th day of February, 2014 and thereby dismissed the appellant’s appeal.
The detailed facts leading to this appeal are set out fully in the lead judgment and I shall not repeat them except when the occasion warrants the reference being made to any parts thereof.
The appeal was heard on the 28th day of February 2018 at which the learned counsel for the appellant Dr. D. A. Ariyoosu adopted his brief of argument filed on 21/8/2015 in which were crafted four issues for determination, viz:
1. Whether the learned justices of the Court of Appeal were right in their failure to express the reasoning for affirming the judgment of the learned trial judge. (Ground Three).

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2. Whether the appellant’s property was still liable to be forfeited despite the term of sentence and payment of compensation orders made against him. (Ground Four).
3. Whether the Court of Appeal was right in affirming the decision of the trial Court admitting the statements credited to the appellant as his confessional statements worthy of being relied upon in convicting the appellant. (Ground Two).
4. Whether, in view of the circumstances of this case, the appellant’s conviction was rightly affirmed by the Court of Appeal. (Grounds One and Five).
The appellant also filed a Reply brief on 23/2/2018 and deemed filed on 28/2/2018.
Rotimi Oyedepo Iseoluwa, learned counsel for the respondent adopted its brief of argument filed on 15/2/2018 and deemed filed on 28/2/18. In the brief were identified four issues for determination which are thus:
1. Whether having regards to the evidence adduced by the respondent before the trial Court it cannot be said that the respondent proved its case against the appellant beyond reasonable doubt to justify the judgment of the Court of appeal affirming the conviction of the appellant.

2. Whether the judgment of the Court of Appeal is liable to be set aside by this Honourable Court on the ground that the Court of Appeal failed to give reason for affirming the judgment of the learned trial judge.
3. Whether having regards to the evidence adduced by the prosecution before the trial Court, it can be said that the Court of Appeal erred in law in agreeing with the learned trial judge that the appellant volunteered his extra judicial statement voluntarily.
4. Whether the order of restitution made by the learned trial Court and upheld by the Court of Appeal was not properly made so as to enable this Honourable Court declare same null and void.
For ease of reference, I shall make use of the issues as crafted by the appellant.
ISSUE NO. 1:
Whether the learned justices of the Court of Appeal were right in their failure to express the reasoning for affirming the judgment of the learned trial judge.
Canvassing the position of the appellant learned counsel, Dr, Ariyoosu contended that the Court of Appeal or Court below was wrong in failing to give their reasoning for the decision to affirm the decision of the learned trial judge to the effect that the prosecution proved the offences alleged against the appellant. That a perusal of the judgment reveals that the learned justices of the Court below merely restated the arguments of counsel on both sides and concluded that the prosecution had successfully discharged the burden placed on it by proving all the essential elements of the offences preferred against the appellant beyond reasonable doubt and that the resolution of the matter was in favour of the respondent against the appellant. That this system was deployed in the resolution of the other issues which is a wrong approach in the delivery of an appellate judgment. He cited Chief Great Ovedje Ogboru & Anor v Dr. Emmanuel Ewetan Uduaghan & 2 Ors (2012) 2-3 SC 66 at 92-94; Mr. Emmanuel Agbanelo v Union Bank of Nigeria Limited (2000) 4 Sc (Pt.1) 233 at 239.
Learned counsel for the appellant stated that this is a case for the interference of concurrent findings of two lower Courts. He cited Mohammed Ibrahim v The State (2015) All FWLR (779) 1149 at 1175; Boniface Adonike v The State (2015) All FWLR (Pt.772) 1631 at 1678-1679 etc.
Mr. Iseoluwa, learned counsel for the respondent contended that the role of a trial judge is different from that of an appellate Court. That whilst the trial Court has the duty to see, hear and assess each witness as to whether he should be believed or not, the appellate Court on the other hand will not intefere with such findings unless the findings are shown to be perverse or unsupported by evidence. That once the appellate Court affirms the decision/findings of the trial Court, the reasons or findings of the trial Court is deemed to have been the reasoning of the Court of Appeal. He stated that the Court below in affirming the decision of the learned trial judge relied on the findings of the trial Court before resolving the issues distilled by the parties. That what the Court below did was in order.
The appellant’s grouse in this issue is that the Court of Appeal failed to express opinion or give reasons before affirming the judgment of the learned trial judge. I find that view difficult to accept in that from the record pages 392-420 specifically, it is seen clearly that the Court of Appeal went to great lengths in reviewing the findings and conclusion of

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the trial High Court and quoting extensively the views of the Court of trial. I agree with the stance of the learned counsel for the respondent that the Court below was after reviewing and evaluating what the first instance Court did was perfectly in order in affirming the findings of that Court which he found acceptable in the light of the evidence laid out and the operating legislations.
What I see as the position the appellant is pushing forward is that there is a preconceived way of judgment writing or preparation to which appellant espouses and which pathway, the Court of Appeal had deviated from. It has to be stated ad infinitum that there is no particular way or route to judgment writing of a judge or an appellate Court so long as what is before Court is shown, the materials before Court put across even if so summarised as to form a single sentence and the reason for the Court coming to the conclusion it did. For the appellant to want to tie the Court below to its own view of judgment writing is to say the least not guided by the law or practice. Each judge is allowed his own style of placing before all and sundry in his judgment what the complaint is and the reason for the decision. In this case the Court below x-raying the findings and conclusion of the learned trial judge found them without fault and adopting them as their own findings for which they arrived at the decision thereby affirming the earlier decision of the trial High Court. The lower Court is at liberty to chart the course it chose and in doing so had no infraction nor can it be faulted as rendering an invalid judgment. The issue is resolved against the Appellant. I place reliance on the case of Muhammed v State (2000) 12 NWLR (pt.682) 596 at 603.
ISSUE NO.2:
Whether the appellant’s property was still liable to be forfeited despite the term of sentence and payment of compensation orders made against him.
Learned counsel for the appellant submitted that the Court below was wrong in affirming the decision of the learned trial judge forfeiting the appellant’s property to GT Bank plc as the learned trial judge had no power under the EFCC Act to order forfeiture of the appellant’s property to the said bank. That the Court below affirming what the trial Court did occasioned a miscarriage of justice which warrants the interference by this Court. He relied on Oba Rufus A. Adejugbe & Anor v Engr. Joseph Akanbi Ologunja (2004) 2 SC (Pt.11) 44 at 64-65.
Dr. Ariyoosu of counsel for the appellant contended that the learned trial judge was wrong in sentencing the appellant for the alleged offences, ordering him to pay compensation covering the alleged admitted to have been filched and still ordering him to forfeit his property as it was double jeopardy and the Court of Appeal also fell into the same error.
For the respondent, Mr. Iseoluwa contended that by the combined provisions of Section 78 of the Penal Codeand Section 365 of the Criminal Procedure Code, the learned trial judge had the requisite jurisdiction and power to order restitution to the victim of crime and no limit had been set as to the amount the trial judge upon convicting the offender can award to the victim of the offence by way of compensation. He cited Martins v C.O.P.(2013) 4 NWLR (pt.1343) 25 at 47; Mafa v State (2013) 3 NWLR (pt.1342) 607 at 622-623.
That a valid order made by a competent Court of law does not become invalid simply because it was made under a wrong law. He relied on Henry Stephens Engineering Co. Limited v Complete Homes Enterprises Nigeria Limited (1987) All NLR 28 at 37; Joseph Falobi v Elizabeth Falobi (1976) NMLR 169 at 177.
That the order of forfeiture of the appellant’s property will not amount to double jeopardy since the property is liable to be forfeited under Section 20 of the EFCC Act. He cited Onwudiwe v FRN (2006) 10 NWLR (Pt.988) 382 at 411-412, 420 and 425; Egunjobi v FRN (2002) FWLR (Pt.105) 896-923.
In this instance, learned counsel for the appellant raised concerns over the order for restitution of the appellant’s property to Guaranty Trust bank by the learned trial judge. This posture is not sustainable in that by the combined provisions of Section 78 of the Penal Code and Section 365 of the Criminal Procedure Code, jurisdiction indeed resides in the trial High Court to order restitution to the victim of crime and there is no limit set down in the legislations as to the amount the learned trial Judge can so award in the circumstance. I am guided by the decision of this Court in Martins v C.O.P. (2013) 4 NWLR (Pt.1243) 25 at 47 wherein my learned brothers cleared the way forward thus:
“What is significant is that under either

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Section 78 of the Penal Code which provides specifically for compensation arising from conviction for offences under the Penal Code and so applicable to the instant case, or under Section 365 (1) (b) which is general provision in respect of all convictions under any law, no limit has been set as to the amount the Court, on convicting the offender, can award the victim of the offence by way of compensation.”
Ogunbiyi JSC at page 51 of the report also had this to say:
The Sections 78 and 365 of the Penal Code and Criminal Procedure Code respectively ought to be given their clear meaning wherein the award of compensation made by the Chief Magistrate Grade I was within the exercise of the powers conferred on him. The award was made after the appellant was properly convicted of the offence of criminal breach of trust under Section 314 of the Penal Code. It was not, in other words made at large but very well within its proper context of jurisdictional competence.” See also Mafa v State (2013) 3 NWLR (Pt.1342) 607 at 622-623.
It is to be noted that the stance of the appellant stems from the learned trial judge relying on Sections 19 and20 of the EFCC Act 2004 which is not the correct law to be applied. That view in my humble opinion cannot stand since the trial Court is empowered to make such an order and the law under which it could do so exists in the penal code and the criminal Procedure code and so placing the valid order pursuant to the wrong law would not invalidate the order properly made. See Henry Stephens Engineering Co Ltd v Complete Homes Enterprises Nigeria Limited (1987) All NLR 28 at 37; Joseph Falobi v Elizabeth Falobi (1976) NMLR 169 at 177.
It follows that whether the forfeiture and restitution ordered by the learned trial judge falls under Section 7 of the EFCC Act, 2004 within which operations of the Commission had acted over the property thus bringing it before the Court for the order to apply the Penal Code as in this case. It has to be said that whether the forfeiture was effected under Section 20 of the EFCC Act or under the penal code since it is the Federal Government of Nigeria who is the prosecuting party, it really does not matter under which of those statutes the forfeiture order is made. I place reliance on Onwudiwe v FRN (2006) 10 NWLR (Pt.988) 382 at 411-420 and 425; Egunjobi v FRN (2002) FWLR (Pt.105) 896-923.
In my humble view the learned trial judge in directing the property to be forfeited to the Federal Government of Nigeria was intended to debar the appellant from deriving benefit from the proceeds of crime for which he was convicted and it cannot be treated as double jeopardy as it is geared towards deterring others who are so minded to know that no benefit would properly inure to the person who brazenly acquires what belongs to another or the Government.
Again this issue is resolved against the Appellant.
ISSUE NO.3:
Whether the Court of Appeal was right in affirming the decision of the trial Court admitting the statements credited to the appellant as his confessional statements and worthy of being relied upon in convicting the appellant.
Learned counsel for the appellant contended that Exhibits P5-P8 and P21, being purported confessional statement of the appellant are not legal evidence before the Court as they are neither admissible in evidence not worthy of being relied upon in convicting the appellant inspite of the trial within trial. He stated that the failure of the prosecution to call the superior officer as a witness is fatal to the prosecution’s case and makes the purported statements inadmissible and cannot be used against the appellant. Also that this failure raises a presumption of withholding evidence as if the superior officer had been called her evidence would have been unfavourable to the prosecution’s case and so the admissibility of the statements has been impugned and so the statements inadmissible. He cited Nweke Onah v The State (1985) 3 NWLR (Pt.12) 236 at 245; Ogunsi v The State (1994) 1 NWLR (Pt’322) 583 at 592; Mbanengen Shande v The State (2005) All FWLR (Pt.279) 1342 at 1360.
That the tests upon which a confessional statement would be admitted and utilised to secure a conviction, the prosecution did not meet.
Learned counsel for the respondent contended that the respondent proved its case in the trial within trial before the trial Court admitted the statements as they met the expected requirements. He cited Kim v The State (1992) 4 NWLR (Pt.333) 17 at 25. That the failure to take an accused person before a superior officer will not render a confessional statement inadmissible nor will not calling the superior

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officer who endorsed such a statement render the statement inadmissible.
He cited Dibie v State (2007) 9 NWLR (Pt.1038) 30 at 64; Akpan v State (1992) 6 NWLR (Pt.248) 439 at 472.
The appellant argues that the extra-judicial statements Exhibits P5 and P21 was not voluntarily made because the superior police officer who attested the statement was not called, that appellant made the statement in the absence of his counsel and the statement written on demand. It is to be noted that the statement were admitted after a trial within trial upon the objection raised by the appellant and in which the Court of trial made the following ruling:
“In this case the evidence relied upon by the prosecution is the evidence of PW1 who stated that the accused made the statement voluntarily. I have considered his evidence and I observe that inspite of the vigorous cross-examination he remained consistent that the accused volunteered the statement. Having watched him while he testified, I hold that he impressed me as a truthful witness. I believe his evidence that he did not threaten or intimidate the accused into making the statements. With regard to the evidence of the – the first point which to note is that the basis of the conduct of trial within trial is that the accused was forced to make the statement. However, rather than give concrete evidence, of how he was forced to make the statement and by whom what the accused did to the witness box is to regal the Court with stories of fear of being taken to EFCC, of bail being revoked, not being allowed access to his lawyer before his statement was recorded, how the room he was take to was dark, how PW1 showed a hostile countenance when he saw him at EFCC office. The impression I formed of DW1 as I watched him testify is that of a person who was not telling the truth but was just saying whatever came to his mouth. He was very evasive during cross examination. I do not believe his evidence. Furthermore, he admitted during cross examination that he at various point admitted the facts that are contained in the statement for example with the police at the Anti fraud unit in Lagos. The accused also admitted that he mentioned the things he bought with the money, the conclusion I have come to is that the accused made the statement voluntarily. Consequently, I hold that the prosecution has established beyond doubt that the accused voluntarily made the statements. I therefore overrule the objection and admit the statements in evidence making them as Exhibits p5-p9 respectively.
Taking a cue from the case of: Kim v The State (1992) 4 NWLR (Pt.233) 17 at 25 para.14, the Supreme Court enumerated the formal requirements of extra-judicial statement which are that:
a) It must carry the usual forms of caution.
b) Each of the words of caution must be in the language understood by the maker.
c) It must be followed by the maker’s thumbprint or signature as the case may be.
d) It must be recorded in the language understood by the maker.
e) It must be read over and interpreted to the maker in language in which it is made.
I shall also refer to the case of Dibie v State (2007) 9 NWLR (Pt.1038) 30 at 64 per Ogbuagu JSC along similar lines, thus:
It need be stressed by me and this is also settled, that there is no requirement of law in Nigeria, but that the practice of taking an accused person along with his confessional statement, to a superior officer who reads over and interprets the statement to him and he confirms it has his voluntary statement has been highly commended and a wise one as giving extra assurance of fairness to the accused person and the voluntariness of his confession. See the cases of the Queen v Omerewure Sapele & Anor – in Re: German Awip (1957) 2 FSC 24; Nwiboko Obodo & 5 Ors v The Queen(1958) 4 FSC 1; R v Igwe (1961) ANLR 330 at 333 and Kim v The State (1992) 4 SCNL 81; (1992) 4 NWLR (Pt.233) 17. Also, confessional statements not so treated, should not necessarily be viewed with suspicion. See the case of Nwigboke & 6 Ors v The Queen (1959) 4 FSC 101 at 102 – Per Mbanefo, F. J., see also Akpan v State (1992) 6 NWLR (Pt.248) 439 at 472 paragraphs B-C.
From what I can see the points of anchor against the confessional statements of the appellant cannot sustain a rejection of the statements as involuntarily obtained, Firstly, it is not the law or practice that an accused person’s legal representation must be present before a statement from him can be accepted as voluntarily obtained nor is it also mandatory that the superior officer who before the attestation was made must be called in evidence. In effect from the

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proceedings of the trial within trial, not only was the procedure followed, the learned trial judge was right in his conclusion that the statement was voluntarily made and had to be admitted. See Edoho v State (2004) 5 NWLR (Pt.865) 17 at 51.
Indeed the statement was properly admitted and it was sufficiently material to ground the conviction.
ISSUE NO.4:
Whether in view of the circumstances of this case, the appellant’s conviction was rightly affirmed by the Court of Appeal.
Learned counsel for the appellant contended that the appellant from the finding of the trial Court was the only ATM custodian of GT Bank at the GRA Branch which is not the case from the evidence on record. That the affirming of that finding by the Court of Appeal being faulty should be set aside. He cited Adejugbe v Ologunja(2004) 2 SC (pt.11) 44 at 46 & 47; Folusho Oladele v The State (1993) 1 SCNJ 60 at 70.
That there were contradictions in the evidence of the prosecution on a material issue which has created doubt and should be resolved in favour of the accused. He relied on Ifeanyichukwu v State (1996) 9-10 SCNJ 118 at 133; Ibeh v State (1997) 1 SCNJ 256; Onafowokan v State (1987) 3 NWLR (Pt.61) 538 at 545; Ndike v State (1994) B NWLR (Pt.360) 330.
For the appellant it was canvassed that there was no direct evidence against the appellant attesting to the commission of the offence alleged against him. That there is no eye witness and the circumstantial evidence the prosecution relied on was not direct, positive and unequivocal pointing to the irresistible conclusion that the appellant committed the alleged offence. He cited Okeke v State (1999) 2 NWLR (Pt.589) 243 at 277.
Responding, learned counsel for the respondent stated that the prosecution established the essential elements of the offences charged. He cited Muhammed v State (2000) 12 NWLR (Pt 682) 296 at 603; Aiyejena v State (1969) NNLR 73 etc.
That in view of the admission of the appellant as contained in his confessional statements Exhibits p5 and p21, the learned trial judge is justified to have convicted the appellant as the Court could convict with just his voluntary confessional statement. He cited Nwaeze v State (1996) 2 NWLR (Pt.425) 1; Nwosu v State (2004) 15 NWLR (pt.897) 466; Uzoka v FRN (2010) 2 NWLR (Pt.1177) 118 at 147;James O Achabua v The State (1976) 12 SC 12 at 63 etc.
That the appellant has not dislodged the findings of the trial Court and affirmed by the Court below and so no basis for the interference of this Court. He cited Attah v State (2009) 15 NWLR (Pt.1164) 284 at 304.
The appellant was charged for being an automated Teller Machine Custodian in the employment of Guaranty Trust Bank committed theft by stealing property to wit:- the sum of N25,000,000.00 (Twenty-Five Million Naira) in the possession of the said bank contrary to Section 289 of the Penal Code.
I shall recast here under the provisions of the said Section 289 of the Penal Code thus:
“Section 289:
Whoever, being a clerk or servant or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.”
The essential ingredients of the offence of theft or stealing are well set out in the case of:- Muhammed v State(2000) 12 NWLR (Pt.682) page 596 at 603 where Omage JCA held thus:
“The definition of the offence against property of theft is contained in Section 286 (1) of the Penal Code, it reads: Whoever intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves the property in order to take it is said to commit theft. From the above definition, the vital elements of the offence of theft are:
(1) Absence of the consent of the owner of the moveable property.
(2) movement of the said property.
(3) Intention to take the moveable property.”
I agree with the respondent’s counsel that the ingredients of the offence were made out by the prosecution beyond reasonable doubt.
The respondent proved these ingredients by placing cogent and compelling evidence before the learned trial judge to the effect that the appellant without the consent of his employer, Guaranty Trust Bank moved the sum of N25,000,000.00 whilst the said sum was in the possession of the Bank. In fact the appellant admitted this in Exhibit P21 apart from the evidence of the respondent’s witnesses.

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My Lords, the evidence of PW1, PW4, PW5, PW6 and PW7 cannot be faulted in that they with all precision linked the appellant with the theft. They gave evidence that the appellant was the ATM custodian. That the appellant took money from the vault of the bank which was meant for the Automated Teller machine. The PW4, PW5, PW6, and PW7 who had opportunity to relieve the appellant on few occasions denied suppressing ATM funds both under examination in chief and cross examination. The appellant also in Exhibit P5 exonerated them that they were not involved in the theft.
It was in evidence before the trial Court that the consent of the bank was sought and obtained to enable the appellant moved the said sum. This was demonstrated vide Exhibit P1 which is the petition of the bank to the Economic and Financial crimes commission and the evidence of all the prosecution witnesses.
Also in respect of the sixth ingredient of the offence is the fact that appellant took away from the possession of the bank the said sum of N25,000,000.00 using the money to acquire properties moveable and immoveable. The element of the intent to cause wrongful gain to himself and loss to his employer was made out.
Count 4 of the charge was on criminal breach of trust and it is thus:
“That you Adeyinka Ajiboye, between September, 2008 and July, 2009 at Ilorin within the Jurisdiction of this Honourable Court, being a servant in the employment of Guaranty Trust Bank and in such capacity entrusted with the sum of N25,000,000.00 (Twenty Five Million Naira) being part of the sum to be loaded in an Automated Teller Machine (ATM), committed criminal breach of trust in respect of the said sum and thereby committed an offence punishable under Section 314 of the Penal Code.”
Section 311 of the Penal Code is thus:
“Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.”
Section 314 provides as follows:
“Whoever, being a clerk or servant or employed as a clerk of servant and being in any manner entrusted in such capacity with property or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine.”
At the conclusion of the trial the learned trial, judge held thus:
“The only defence that I can make out of the defendant’s case is that he was not the only one in charge as PW5, PW6 and PW7 were also ATM custodian loading cash in to the machines. His oral confession and the confessional statements has removed the wind out of the sail of the defence with the accused exonerating them. I therefore find that the prosecution has established beyond reasonable doubt that the accused committed theft of the sum of N25,000,000.00 the property of the G.T Bank and I convict him of count 2 as charged.
With regard to count 4 alleging criminal breach of trust of the sum of N25,000,000.00 entrusted to him by his employers, I hold that from the evidence of PW1, PW4, PW5 and PW7 the accused as the ATM custodian of GRA, Ilorin branch an employee of GT Bank Plc was entrusted with cash meant, for dispense at ATM machines in the bank. The evidence of the witnesses, Exhibits P2-P4, Exhibits P9-P11, the oral confession of the accused as well as the confessional statements in Exhibits P5-P8 and P21 proved beyond reasonable doubt that accused committed criminal breach of trust in respect of the money entrusted to him. See Onogwu v The State (1995) 6 NWLR (Pt.401) 276. Consequently, I convict the accused on count 4.”
In upholding the decision, conviction, sentence and orders of the trial Court, the Court below stated thus:
“Proof beyond reasonable doubt is a cardinal principle of law in Miller v Minister of Pension (1947) 2 All ER 373 H – Denning J. (as he then was) reflected on the meaning and impart of proof beyond reasonable doubt in relation to the protection of the community when the commission of crime is in issue. His Lordship said:- “The degree is well settled, it needs not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibility to defeat the course of justice. If evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible, but not in least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.”
It is my view that the prosecution his successfully discharged the burden placed on it by proving all the essential elements of the offences preferred against the appellant beyond reasonable doubt. I therefore rest resolution in favour of the respondent against the appellant.”
On what reasonable doubt is, see Alake v State (1991) 7 NWLR 9 (Pt.205) 567 at 591 Per Tobi JSC:
“It is generally believed that once there is the slightest doubt in the mind of the Court, then the accused must, as a matter of law, be discharged and acquitted. I think that is rather a wide statement of the legal position. That was the position I took in Sanni Adisa v The State (1991) 1 NWLR (Pt.168) 490. I have since realized that I went too far. I think the adjective “reasonable” qualifying the noun “doubt” should not give rise to that very wide statement. I think the position should be this once the ingredients of the particular offence the accused person is charged with are proved, that constitutes proof beyond reasonable doubt. Otherwise not, I must apologise to the profession for stating the principle so wide and beyond its already onerous ambit.”
Clearly what was placed before the learned trial Court made it easy for it to make the findings it did that the offences were proved as required by law and the appellant did not put up a defence that could whittle down the strength of the prosecution’s case or even produce a doubt which could help his defence. There is nothing on which this Court could change the course of the concurrent findings and it has the only option of not interfering.
From the foregoing and the better articulated leading judgment, I too see no merit in this appeal which I dismiss.
I abide by the consequential orders made.
JOHN INYANG OKORO, J.S.C.: I read in advance the lead judgment of my learned brother Amiru Sanusi, JSC just delivered. I agree that there is no merit in this appeal. I join my learned brother in dismissing this appeal.
Appeal Dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is accordingly dismissed by me.
Appearances

When the trial Court granted bail on 18th December, 2015, it also directed the fixture of the trial of the appellant and the other 5 co-accused persons to 2nd & 3rd days of February, 2016. The hearing has been frustrated since because of the interlocutory application and appeals.
On 12th January, 2016, in reaction to his re-arrest, the appellant filed the motion, the subject of this appeal, praying the trial Court for the following orders.
1. AN ORDER prohibiting the complainant from further prosecuting the instant charge or any other charge against the 1st Defendant, or seeking any form of indulgence before this Honourable Court or any other Court in Nigeria, except and unless it complies with the Order of this Court made on 18th December, 2015, the said Order which remains valid for all intents and purposes, having not been set aside by any Appellate Court.
2. AN ORDER discharging the 1st Defendant/Applicant of all the offences contained in the instant charge, the said Charge which cannot be lawfully prosecuted by the Complainant who is in brazen disobedience of a subsisting Order of this Honourable Court made on 18th December, 2015.
Alternatively
3. A Mandatory Order directing the complainant who acts through the Department of State Services/EFCC and other enforcement agencies, to immediately produce the 1st Defendant in Court, by which this Honourable Court may give directives as it considers appropriate, for the administration of justice in accordance with the Administration of Criminal Justice Act, 2015.
Alternatively
4. AN ORDER staying further proceedings in this Charge until the 1st Defendant/Appellant exhausts the remedies available to him in law for the enforcement of his right to liberty, the said right which had already been preserved by the Order of 18th December, 2015.
5. And for such Orders or other Orders this Honourable Court may deem fit to make in the circumstances of this case.
The grounds for the application are said to be –
1. Until set aside, an Order of Court remains valid for all intents and purposes.
2. The Complainant having brazenly defied the order of Court made on 18th December, 2015 is in contempt of the proceedings and majesty of this Honourable Court, contrary to Section 6(6)(a) of the 1999 Constitution (as amended).
3. Until the complainant complies with the aforedescribed subsisting order of this Honourable Court, it cannot continue to lawfully prosecute this Charge, neither can it be afforded any right of audience in any Court in Nigeria.
4. In consequence of the above, the 1st Defendant is entitled to be discharged of all the offences contained in the present Charge whereof he stands trial.
5. In the light of the Complainant’s, continued denial of the 1st Defendant/Applicant’s right to take benefit of the Order admitting him to bail.
6. This noble Court has powers to grant the reliefs sought herein for the protection of its majesty, integrity, and the rule of law in our democracy, ditto the preservation of law, order judicial powers of the Court entrenched in the 1999 Constitution (as amended).
The trial Court, after hearing the parties and considering their various positions, dismissed the application having come

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to the conclusion, on the facts, that it “did not make any order against (the) re-arrest” of the appellant and that the 1st respondent, “the complainant in this case is not in contempt of my Order of 18th December, 2015”. The appellant appealed the ruling dismissing his application seeking an order, inter alia, to prohibit the 1st respondent from further prosecuting him on four(4) grounds of appeal.
At the Court of Appeal, the appellant argued the appeal on 3 Issues formulated from the 4 grounds of appeal contained in the Notice of Appeal. The 3 Issues are as follows –
ISSUES FOR DETERMINATION
1. Whether the High Court FCT Abuja was right, when having regard to the peculiar facts and circumstances of this case, it failed to give effect to its order releasing the Appellant on bail when it was apparent that it was the Respondent acting through one of its agencies the Directorate of State Services in conjunction with the EFCC that was responsible for the flouting of the Court’s order? [Grounds 1 and 3].
2. Where, as established in this case the Appellant is unable to prepare for his defence due to the interference with his liberty by the Respondent, whether the reliefs sought herein is the best remedy for (i) for the restoration of the dignity and efficacy of the Court’s adjudicative powers and (ii) for ensuring a fair trial for the Appellant before an independent and impartial Tribunal? [Ground 1].
3. Where as in this case, the Complainant is in disobedience of lawful order(s) in which he persists in disobeying, whether the Lower Court was right in indulging such a contemnor who is seeking further indulgences before it, while still in contempt and indeed whether the Complainant can be granted audience in this matter while it is still in contempt? [Ground 4].
The 1st respondent, however, formulated a sole issue for the determination of the appeal from the appellant’s 4 grounds of appeal thus –
Whether the learned trial Judge was not right in refusing the appellants application wherein he sought for an Order of prohibition to prevent the further prosecution of the charges preferred against him and an Order discharging him in respect of the said charges on the ground that the prosecution was in breach of the Order admitting him to bail.
The Court of Appeal, in its discretion, adopted the sole issue formulated by the 1st respondent for the determination of the appeal, and resolved the appeal on that sole issue. In dismissing the appeal, the Court of Appeal [per Aboki, JCA], found, inter alia, that since trial Court made no order against the re-arrest or further arrest of the appellant no order of the trial Court was consequently disobeyed or flouted either by the 1st respondent, EFCC, or the DSS. This further appeal, brought on 7 grounds of appeal, is consequent upon that decision of the Lower Court dismissing his appeal on 15th June, 2016. One of the grievances or complaints of the appellant before us now is that the Lower Court, in dismissing his appeal the very day the appeal was argued, had breached his right to fair hearing.
From the 7 grounds of appeal the following 5 issues for the determination of this appeal have been formulated by the appellant. That is –
ISSUES FOR DETERMINATION
1. Whether by hearing the appeal and adjourning judgment to 4pm of the same day, the Court of Appeal did not by that action of undue haste to deliver judgment breach the Appellant’s right to fair hearing, particularly the hallowed principle that “Justice hurried is Justice denied” and in the circumstances thereof could it be said that there was no miscarriage of Justice? [Ground 1].
2. Whether the adoption by the Court of Appeal of the sole issue formulated by Respondent before it as opposed to the Appellant’s 3 Issues tied to the 4 grounds of appeal did not amount to both a non-consideration and misapprehension of the issues put forth by him for adjudication and determination and in consequence therefore breached Appellants right to fair hearing and occasioned a miscarriage of Justice? [Ground 2].
3. Whether in the resolution of the sole issue adopted by the Court below was right, when it affirmed the decision of Hon. Hussaini Baba J of the High Court of the FCT where he refused to give effect to his order releasing the Appellant on bail when it was apparent that it was the Respondent acting through one of its agencies – the Directorate of State Services in conjunction with the EFCC that was responsible for the flouting of the Court’s order? [Grounds 3 and 4].
4. Where, as established in this case and contrary to the conclusion of the Court below, the Appellant is unable to prepare for his defence due to the interference with his liberty by the Respondent, whether the reliefs sought herein is the best

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remedy for (i) for the restoration of the dignity and efficacy of the Courts adjudicative powers and (ii) for ensuring a fair trial for the Appellant before an independent and impartial Tribunal [Ground 5].
5. Was the Court of Appeal not in error when it affirmed the decision of the High Court of the FCT that the Complainant (FGN) was not in disobedience of lawful orders(s) and whether the Courts below were right in indulging such a contemptnor who was seeking indulgences before it, while still in contempt and indeed whether the Complainant can be granted audience in this matter while it is still in contempt? [Ground 6 &7].
The 1st respondent on his part, has formulated two issues for the determination of the appeal thus –
1. Whether the appellant’s right to fair hearing was infringed upon merely because the Court of Appeal adopted the issue formulated by the 1st Respondent and delivered Judgment the same day the appeal was heard? [See grounds 1 and 2 of the Notice of Appeal].
2. Whether the Court of Appeal was not right when it affirmed the decision of the learned trial judge which dismissed the Appellant’s application seeking to stop the Prosecution from further prosecuting the charges against him on the ground that the prosecution was in breach of the order admitting him to bail pending his trial? [See grounds 3, 4, 5, 6 and 7 of the Notice of Appeal].
The appellant’s issue 4 does not, with all deference to the learned Senior Counsel who settled it, seem to draw its blood and life from ground 5 of the Grounds of Appeal from where it purports to flow from. Rather, it seems to flow from the obiter dictum of the Lower Court in the last paragraph of its judgment, which in paragraph 29 of the Appellant’s Brief the learned senior counsel had described as “a righteous obiter”‘ At page 1047 of the Record the Lower Court had stated or remarked in passing thus –
It is still pertinent to observe, that bail is a right of a person accused of trial, once it is not a homicide charge. It enables him to prepare for his defence, which is a constitutional right. If Courts grant bail, there should be compliance, as disobedience to Court orders, is injurious to the smooth running of the administration of justice, and capable of eroding the rule of law, which is necessary and a part and parcel of any democratic society, and to avoid anarchy.
The complaint in ground 5 of Notice of Appeal is that the Lower Court erred when it held –
i. That the act of the EFCC is not the act of the DSS, and that the two bodies are creations of two distinct statutes with two separate powers and functions;
ii. That it is incredulous to argue, as the appellant did, that once he had been granted bail for one offence and is being prosecuted for it by one agency of the Federal Government of Nigeria (FGN); he could no longer be apprehended and prosecuted by another agency of the FGN for another offence; and
iii. that the principle in HADKINSON & HADKINSON (1952) P.285 CA does not apply in the instant case as no order of Court had been flouted.
The entire superstructure of the appellant’s appeal rests on Issue 5. That is, whether the Court of Appeal was not in error when it affirmed the decision of the trial Court that 1st respondent, the complainant, or the FGN was not in disobedience of any lawful order of any Court of law? The learned trial judge (H.B. Yusuf, J) had stated emphatically, as a fact at page 910 of the Record, that he “did not make any order against the re-arrest” of the appellant after the due execution of his order admitting the appellant to bail. The Court of Appeal affirmed this finding of fact.
Either at the Court of Appeal or before us in this appeal, there is no specific ground of appeal challenging this finding of fact. There is a settled presumption that a specific finding of fact neither challenged nor rebutted is correct: REGISTERED TRUSTEES, APOSTOLIC FAITH MISSION v. JAMES (1987) 3 NWLR (Pt.6) 566; BAKARE v. THE STATE (1987); NWLR (PT.52) 579. This Court in DARIYE v. FRN (2015) 61 NSCQR 1457 at 1496 – 1497, re-stating its earlier stance in ONIBUDO v. AKIBU (1982) 2 SC 60 at 63, held that the appellant who does not appeal a specific finding of fact is deemed to have accepted and conceded it. Facts not disputed are always taken as established.
The concurrent findings of fact to the effect that the trial Court made no order that the appellant, upon his being admitted to bail, shall not be re-arrested or further arrested by any other prosecutoral organisation for any other offence are not perverse. The orders made on 18th December, 2015 by the trial Court do not have such attributes or riders to them. The orders are explicit and unambiguous.

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I agree with the 1st respondent, on the authority of KALU v. FRN (2014) 1NWLR (Pt.1389) 379 at 544 and ONWUKA v. EDIALA (1989) 1 NWLR (Pt.96) 182, that a party is not permitted to read into an order of Court what the order does not, in fact, contain.
I have painstakingly read the Appellant’s Briefs viz-a-viz the supporting affidavit at the trial Court. I have not been able to see any proof offered by the appellant that his arrest, on 29th December, 2015, was in connection with the offences he was arraigned for his trial at the trial Court. That is, the offences he was admitted to bail pending his trial at the trial Court. It is not enough to assert without proof, as the appellant has done, when it is submitted that the 1st Respondent, through the EFCC/DSS acted with guilty mind when it caused the appellant to be re-arrested on 29th December, 2015. The law is settled: he who asserts must prove. That is the essence of Section 131(1) of the Evidence Act, 2011. The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side: Section 132 of the Evidence Act. I am unable to see from any averment in the supporting affidavit, at pages 671 – 674 of the Record, where the appellant satisfactorily that his re-arrest and subsequent detention was in violation of the trial Court’s order admitting him to bail.
The 1st respondent filed counter-affidavit. It is at pages 709-743 of the Record. In paragraphs 14, 16 and 19 thereof it is averred
14. That (the appellant) was being investigated by the DSS and the Nigerian Military Authority for various offences relating to breach of Military Service Laws (and that he) was re- arrested after his release from the prison custody to allow those bodies to conclude their investigations and take appropriate steps under the service Law.
16. That (the trial) Court never made any order that the appellant should not be rearrested or investigated for breaking martial laws or from being prosecuted for any other crime apart from this case.
19. That on 21st December, 2015 (the trial) Court never made any Order preventing the further investigation of any other offences that the (the appellant) or any other defendant may be suspected for and for which they may be lawfully arrested.
The terse response of the appellant as contained in paragraphs 7 & 8 of the Reply to the counter-Affidavit, is that the re-arrest of the appellant has nothing to do with breaches of service law and that the appellant retired from Military Service since 1987. I, however, notice, from the annexures to the supporting affidavit, the Exhibit Dasuki Series, that the appellant at all material times up to 2015 was the National Security Adviser to the President of the Federal Republic of Nigeria. The deponent of the affidavit, that is the Appellant’s Reply to the Counter-Affidavit, did not aver that the appellant, in that capacity, had nothing to do with breaches of security or Military laws. I agree with the 1st respondent that the orders made on 18th December, 2015 did not inure in favour of the appellant’s claim to immunity against arrest, investigation and prosecution for any other offence(s) he may have committed at one time or the other.
The appellant has made so much fuss about the rule in HADKINSON v. HADKINSON (supra) in submitting that since the 1st respondent has flouted the order of the trial Court made on 18th December, 2015, he was guilty of contumelious contempt warranting the prohibitive orders sought against it.
These submissions are made quite oblivious of paragraphs 6 and 7 of the supporting affidavit and trial Court’s finding on them at page 773 of the Record. That is –
From paragraphs 6 and 7 of the affidavit in support of this application, it is clear that after the 1st Defendant/Applicant satisfied the terms in exhibit Dasuki 2 he was released from the Federal Prisons on the 29th December, 2015. At this point, the order of the Court directed at the Comptroller of Prisons was in my view complied with.
Paragraph 6 of the supporting affidavit has admission against interest to the effect that the appellant, upon fulfilling the bail terms ordered by the trial Court on 18th December, 2015, was released from the Federal Prisons, Kuje, on 29th December, 2015 as ordered by the trial Court. The appellant, by his own showing,cannot be heard to say that the order made on 18th December, 2015 was flouted and that the 1st respondent was guilty of contumelious contempt of that order. At the risk of repetition, I agree with the 1st respondent that there was no order made by the trial Court that the appellant would no longer be rearrested, investigated and prosecuted by any other agency of the

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FGN on reasonable suspicion that the appellant had committed another or any other offence. Accordingly, I do not think that the Court of Appeal erred when, at page 1040 of the Record, it held that once the appellant was, on 29th December, 2015, released from prison custody the order made on 18th December, 2015, admitting him to bail, had been complied with; and that it is fallacious to submit that the EFCC, the 1st respondent, had disobeyed the court order admitting the appellant to bail.
The appellant has not been able to show that the concurrent findings of fact by the trial Court and the Court of Appeal that the trial Court made no order that the appellant shall not subsequent to the order made on 18th December, 2015, admitting him to bail, be arrested or further arrested, investigated and prosecuted for any other offence, is perverse. The concurrent findings, also, that the order made on 18th December, 2015 admitting the appellant to bail was complied with on 29th December, 2015, and not flouted, upon the appellant fulfilling the bail terms, are similarly not perverse. This Court, as a policy, remains hesitant to interfere with concurrent findings of fact made by the trial and intermediate Courts. It only intervenes and interferes with such concurrent findings of fact if and only when they are shown to be perverse: ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY (2015) 61 NSCQR 1857; ATOLAGBE v. SHORUN (1985) LPELR – 592 (SC).
The appellant complains vociferously that he was denied fair hearing by the Court of Appeal in three ways. That is –
i. that his re-arrest on 29th December, 2015 and incarceration since adversely hamper his right to adequate time and facilities to prepare his defence to the 19 charges he was facing at the trial Court, and that his incarceration restricts his access to his counsel. This alleged right comes under Section 36(6) of the 1999 Constitution;
ii. that the Court of Appeal’s preference of the sole issue formulated by the 1st respondent to his three issues demonstrates that the Court of Appeal did not give adequate consideration to the case he had presented before it; and
iii. that the Court of Appeal delivering Judgment just a few hours after the conclusion of the hearing of the appeal was hasty, and that justice hurried is justice denied.
It is clear from GARBA V. UNIVERSITY OF MAIDUGURI (1986) 2 SC 128; (1986) 1 NWLR (Pt.18) 550, that the right entrenched in Section 36(1) of the Constitution has three major components; namely:
a. Fair hearing or trial (which includes audi alteram partem – i.e hear the other party and the right agqinst bias-nemo judex in causa sua),
b. the determination of the civil rights or obligation within a reasonable time; and
c. by a Court or tribunal established by law.
The appellant’s complaints in this appeal appear to rest on the first two.
The complaint that the short adjournment of a few hours before the delivery of its judgment by the Court of Appeal, just like the Court of Appeal’s preference of the 1st respondent’s sole issue to the three issues formulated by the appellant, appears to me to be complaints attacking the manner the Court of Appeal exercised its undoubted discretion. An appeal attacking the exercise of discretion should ordinarily have been brought upon leave first sought and obtained: PRUDENT BANK PLC v. OBARAKI (2012) NWLR (Pt.128S) 504 at 513. I have not seen any evidence of such leave in this appeal.
Be that as it may, this Court will not interfere with the exercise by the Court of Appeal of its undoubted discretion unless the appellant shows that the discretion was not exercised judicially and judiciously; LAFFERI NIG. LTD. v. NAL MERCHANT BANK PLC (2015) LPELR – 24726 (SC). The interference is very seldom and only in exceptional cases where there has been manifest and obvious miscarriage of justice: ODUSOTE V. ODUSOTE (1971) ALL NLR 219.
The appellant, citing Section 258(1) of the Constitution and the cases of AGBANELO v. U.B.N. (2000) 7 NWLR (Pt.666) 540 and UNONGO v. APER AKU (1983) 2 SCNLR 332 at 352, submits that the decision of the 5 justices of the Court of Appeal delivered only in a few hours whereas they had 3 months to do so was rather a hasty and “hurried judgment at the expense of a carefully reasoned out judgment”, particularly that the appeal was determined on only one issue.
Let me debunk some misconceptions inherent in these submissions. What is important is not how long it takes to write a judgment, but how articulate the judgment is. It is also not the quantum of issues formulated that determines the fate of an appeal but the aptness of the issues to the dispute. A single issue, properly formulated and direct to the dispute or controversy, can (and often times it does) resolve the dispute. It is only in the academic world that disputes or controversies are used to identify or find issues. In adjudication issues are formulated for the resolution of real disputes.

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Section 258(1) of the Constitution must have been cited in error. As pointed out in the Brief of the 1st respondent. The appellant, apparently, intends to refer to Section 294(1) of the same Constitution that provides –
Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
The mischief the provision intends to address and stamp out is delay in justice delivery. Section 294(1) is neither an antidote nor the antithesis of Section 36(1) of the same Constitution that prescribes, inter alia that in the determination of his civil rights and obligation a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law. I do not see how a judgment delivered by the Court of appeal within a few hours after the conclusion of the final addresses by the parties ordinarily violates the right to fair hearing guaranteed to the appellant. Appeals at the Court of Appeal are heard on briefs of arguments previously filed and served on the parties. The briefs are available to the justices of the Court to peruse and appreciate the issues therein long before a date is appointed for the hearing of the appeal on the said brief. In this appeal, we have not been told that the briefs were only available to the five (5) Justices of the Court of Appeal just on the day the appeal was heard.
In view of Section 285 of the amended 1999 Constitution, UNONGO v. APER AKU (supra) no longer represents good law. In the UNONGO case Section 140 of the Electoral Act, 1983 intended to hasten the pace of the administration of justice in election matters was held to be unconstitutional. Section 285 (6) & (7) of the Constitution, as amended, have restored what the annulled Section 140 of the Electoral Act, 1983 had intended to achieve.
Speedy trial, in criminal proceedings, is an aspect of the rights to personal liberty and fair hearing guaranteed, respectively, by Sections 35 and 36 of the Constitution: OKECHUKWU BENSON v. C.O.P. (2013) LPELR – 21212 (CA). It appears to me the learned Justices of the Court of Appeal, in this case, had in mind what the learned Idoko, J (of blessed memory) had in mind in MORGAN OKETA OGWU & ANOR. v. THE STATE (1981/82) BNLR 31, – when he stated:
This speedy trial guaranteed under our Constitution is a valuable one and it is armed at serving three purposes, namely: (1) it protects an accused against prolonged imprisonment; (2) it neutralizes the anxiety and public suspicion which leaving a case hanging on the neck of an accused engenders; and (3) it prevents the means of proving the innocence (or otherwise) as a result of loss of witnesses and dulling away of (their) memory.
Of greater value for speedy trial, when the Court is aware that the accused person is in custody, is the prevention of his punishment before his trial and conviction.
When this Court in ARIORI v. ELEMO (1983) 1 SCNLR 1 and FAWEHINMI v. NBA (No.2) (1989) 4 SC (Pt.1) 63 stated that a party can waive a right inuring to him for fair hearing/trial, it also made it clear that the public right to speedy trial or determination by the Court within a reasonable time cannot be waived. No litigant, as I stated in ANPP & ANOR. v. INEC & ORS. (2008) LPELR – 9256 (CA), has a right to unnecessarily delay the hearing of his suit and move the Court to proceed at his pace. In order to give effect to the liberty of an accused person incarcerated the essentiality of speedy trial imposes a duty on the Court and the parties [including their counsel) to ensure that any antics or gimmicks aimed at delaying the determination of the matter must be avoided. In DARIYE v. FRN (2015) 6 NWLR (pt.1467) 325 at 362 delay tactics employed by the rich and powerful designed to cripple criminal justice system was loudly deprecated. No litigant has that right or privilege.
The parties in litigation have the right to have their case/matter fairly considered: UDOFIA v. THE STATE (1984) LPELR – 3806 (SC). The Court, in my firm view, cannot be guilty of undue haste, if in its decision, the issues in the case or matter are fairly considered. In all the instances where hasty decisions or actions of the adjudicating body were held to be hasty and amounting to denial of justice in the proceedings those decisions or actions were shown to be aimed at frustrating the legal rights of one of the litigants. In DARIYE v. FRN (supra) the antics were aimed at delaying trial. In AKABOGU v. AKABOGU (2007) ÂNWLR (pt.826) 445 and DURU v. FRN (2013) 6 NWLR (Pt.1351) 441, the actions or decisions of the adjudicating body were found respectively, to be aimed at denying the right of the appellant to address the trial judge, or to frustrate the appellants right of appeal. That is not the situation in this appeal.
The appellant has not shown satisfactorily that the Court of Appeal did anything wrong in law that compromised his right to fair hearing/trial when upon the adoption of the briefs of argument by the parties through their respective counsel it retired and delivered its judgment within only a few hours. Section 307 of the Administration of Criminal Justice Act,

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2015 providing that when the case for both sides is closed, the Court shall consider its verdict and for this purpose may retire or adjourn the trial, read together with Section 36(1) of the Constitution, supports the procedure adopted by the Court of Appeal. Rather than condemn the Court of Appeal, I hereby commend the learned justices for their industry and enterprise.
The exercise by the Court of Appeal of its discretion to prefer the sole issue formulated by the 1st respondent for the determination of the appellant’s appeal is the main thrust of Issue 2 argued by the appellant in this further appeal. The genesis of the appeal at the Court of Appeal was the application filed by the appellant at the trial Court seeking orders to prohibit his further trial or prosecution on the ground that the trial Court’s order granting him bail pending his trial had been violated. In the words of the learned Senior Counsel for the appellant –
The application is about the Court recognising that it can enforce its own orders and protect its sanctity and integrity- The effect is that if the Court cannot assert its authority in the face of brazen disobedience by one of the parties, i.e. Respondent, the Court’s independence and impartiality would be compromised.
The core issue, at the trial Court and Court of Appeal, was whether any lawful order made by the trial Court had been flouted? The indubitable fact is that the order made on 18th December, 2015, admitting the appellant to bail, was enforced on 29th December, 2015 upon the appellant meeting all the bail terms. The trial Court found specifically that the order it made on 18th December, 2015 was not flouted, and that in fact it was complied with on 29th December, 2015. This specific finding of fact was admitted by the appellant in paragraphs 6 and 7 of the supporting affidavit at the trial Court.
I have perused the appellant’s three issues formulated for the determination of his appeal at the Court of Appeal, as well as the 1st respondent’s sole issue. I cannot fault the Court of Appeal decision preferring the 1st respondent’s sole issue to the 3 issues formulated by the appellant. The respondent’s sole issue was more apt and in it all the 3 issue formulated by the appellant were subsumed.
Appellant’s Issues 1 and 3 at the Court of Appeal complained that the 1st respondent disobeyed the order admitting him to bail and that the trial Court should not have indulged the 1st respondent as a contemptnor.
The substance of Issue 2 is that in consequence of the 1st respondent’s disobedience of the trial Court’s lawful order the appellant was unable to prepare his defence. The sole issue formulated by the 1st respondent which summed up the 3 issues formulated by the appellant, is –
Whether the learned trial judge was not right in dismissing the appellants application seeking to stop prosecution from further prosecuting the charge against the appellant before the (trial) Court on the ground that prosecution was in breach of the order admitting the Appellant to bail pending his trial.
The learned Senior counsel for the appellant submits that it is only in the most unusual circumstances, such as when the appellants issues are hopeless inelegant and incomprehensive, that the Court hearing the appeal can prefer the respondents issues (s) to the appellants issue(s). citing the cases of HON. E. A. ARAKA v. AMBROSE N. EJEAGWU (2000) 15 NWLR (PT.692) 684 AT 718 and ISHAYA BAMAIYI v. THE STATE & 4 ORS (PT.715) 220 AT 293; (2001) 4 SCNJ 103 AT 116 117 (if even these weird reports exist), the learned Senior counsel submits correctly that the Court of Appeal, being an intermediate Court must consider all issues properly raised and formulated by the parties and pronounce on them; and that failure to do so would result in breach of the right to fair hearing. The appellant has not shown what injustice, in actuality, he has suffered from the Court of Appeal adopting the 1st respondent’s sole issue in preference to his 3 issues, which in my view are subsumed in the 1st respondent’s sole issue.
An appellate court, in the interest of justice can, and it is permitted to, prefer an issue or issues formulated by any of the parties to all or any other issues formulated by another party. It can, even on its own, formulate an issue or issues which it considers germane to and pertinent in the determination of the matter in controversy: AGBAREH v. MIMRA (2008) 2 NWLR (Pt.1071) 410; MUSA SHA (JNR) & ANOR v. DARAP KWAN & ORS. (2000) 8 NWLR (Pt.670) 685. So long as it does not lead to injustice, an appellate Court is free to adopt the issue(s) formulated by the respondent in preference to those formulated by the appellant if the issue(s) formulated by the respondent are more elaborate, succinct and apt to the issues in controversy than those of the appellant. After all, the purpose of framing

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issue(s) is to attain a more judicious and proper determination of the appeal by bringing out clearly and accurately the point or question in dispute in order that it may be correctly isolated and addressed. The most important thing, as submitted by the senior counsel for the 1st respondent, is that the issue is traceable to the ground(s) of appeal.
At the risk of repetition, it is my firm view that the central issue, both at the trial Court and the Court of Appeal, is whether the 1st respondent did, in fact, disobey the order made on the 18th December, 2015 admitting the appellant to bail pending his trial. That central issue was the substance of the 3 issues formulated by the appellant and the sole issue formulated by the 1st respondent at the Court of Appeal. That central or core issue was not missed by the Court of Appeal. It was in fact fairly considered. The appellant, in this interlocutory appeal, has merely made fair hearing a whipping principle to filibuster all the way to this Court.
The appellant’s vitriolic diatribe at the Court of Appeal for the expeditious determination of his own appeal is clearly symptomic of the mala fide or the ulterior purpose of his appeal. An appeal brought, not bona fide, but merely to delay a pending action or to gag other prospective actions is clearly an abuse of Court process: R-BENKAY NIG. LTD. v. CADBURY NIG. LTD. (2012) LPELR – 7820 (sc); CBN v. SAIDU (2001) 12 SC (PT.II) 146; EDJERODE v. IKINE (2001) 12 SC (PT.II) 125; AGWASIM v. OJICHIE (2004) 10 NWLR (Pt.882) 613 at 624 – 625 (SC) SARAKI v. KOTOYE (1992) 9 NWLR (Pt.624) 156 at 188 (SC).
A gagging suit is clearly an abuse of Court process: MOBIL PRODUCING NIG. UNLIMITED v. SUFFOLK PETROLEUM SERVICES LTD. (2012) LPELR – 40054 (CA). The appellant has, in the words of Lord Denning MR in WALTERSTEINER v. MOIR (1974) 3 ALL E.R. 217 at 230,
Used the abracadabra: “This is sub judice” – to avoid any discussion, not only on the matters concerned in the litigation, but other matters also. His whole conduct throughout the proceedings-
to my mind, his action was an abuse of the process of the Court – (The) proceedings were all a pattern (designed) not to get justice – but to thwart it. When the Court meets with such abuse, it has a means to cope with it. It will strike out the action and will give such judgment as the nature of the case permits.
The appeal lacking in merits, and being clearly an abuse of Court process, is hereby dismissed in its entirety. The case is remitted to the learned trial judge [Hon. H. B. Yusuf,J) of the High Court of the Federal Capital Territory for hearing, with the further directive that it shall be given accelerated hearing.
At the hearing of the appeals, it was the consensus of all counsel that the appeal No.SC.618/2016 shall abide the outcome of the appeal No.SC.617/2016. It is so ordered accordingly.
MUSA DATTIJO MUHAMMAD, J.S.C.: Upon a preview of the lead judgment of my learned brother EJEMBI EKO JSC just delivered, I also dismiss the unmeritorious appeal by virtue of the reasoning and conclusion arrived at by my learned brother in the said judgment. I endorse all the consequential orders made in the lead judgment.
JOHN INYANG OKORO, J.S.C.: I read before now the judgment of my learned brother, Ejembi Eko, J.S.C. just delivered. I am in agreement with the reasons advanced and the conclusion that this appeal lacks merit and deserves an order of dismissal. His Lordship has exhaustively dealt with all the issues submitted for the determination of this appeal and I have nothing new to add. Accordingly, I adopt his reasons and conclusion as mine. Appeal is hereby dismissed. I abide by all the consequential orders made in the lead judgment.
It was agreed at the hearing of this appeal that appeal No.SC.618/2016 shall abide the outcome of appeal No.SC.617/2016. I so order.
Appeal Dismissed.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Eko, JSC, obliged me with the draft of the leading judgment just delivered now. I agree with His Lordship that this appeal is devoid of merit. Accordingly, I enter an order dismissing it. I abide by the consequential orders in the said leading judgment.
AMINA ADAMU AUGIE, J.S.C.: I have had a preview of the lead Judgment delivered by my learned brother – Eko, JSC, and I agree with him that the Appeal lacks merit.

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As he noted, concurrent findings of fact by the Lower Courts are not usually disturbed unless the findings are shown to be perverse, or miscarriage of justice or violation of principles of law or procedure is shown – see Ogoala V. The State (1991) 2 NWLR (Pt.175) 506 SC.
In this case, there is no question that the concurrent findings of the two Lower Courts are in no way perverse because the trial Court’s Order granting Appellant bail on 18/12/2015 had been carried out.
The fact that he was re-arrested and taken away by Officers of the Directorate of State Services [DSS] after he was granted bail had nothing whatsoever to do with the trial Court because it granted the Appellant bail in respect of the criminal matter it was dealing with.
There is no “subsisting Order” of the trial Court that remained “valid for all intents and purposes, having not been set aside by an appellate Court. There is nothing for an appellate Court to set aside because the Order for bail made on 18/12/2015 had been effected.
There is, therefore, no question of the first Respondent being in “contempt of the proceedings and majesty” of the trial Court because it “brazenly defied the Order of the trial Court made on 18/12/2015. The Court of Appeal’s decision to affirm the Ruling of the trial Court cannot be faulted; the trial Court made no order against the re-arrest or further arrest of the Appellant, and so, no order of the trial Court could have been disobeyed or flouted by first Respondent, DSS, etc.
This Appeal is certainly an abuse of Court process; nothing else, and in view of the well-articulated reasons marshalled by my learned brother, Eko, JSC, in the lead Judgment, I also dismiss this Appeal and I abide by the consequential orders he made in the lead Judgment, including the Order made as to the Sister Appeal No. SC.618/2016.

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MARY UKAEGO PETER-ODILI, J.S.C.(Delivering the Leading Judgment): The appellant was initially arraigned along with two others before the Chief Magistrate Court, Lokoja for offences of criminal breach of trust, theft, criminal conspiracy and criminal intimidation. Upon his arrest, appellant volunteered an extra judicial statement denying committing the offences contrary to Sections 97(1), 306, 287, 322 and 397 of Penal Code.
The appellant was the 1st accused in the case before the trial Court while the 2nd and 3rd accused persons were Hycent Ndive and Cyril Onah before the trial Court.
FACTS:-
The case of prosecution is that the PW1, Godwin Ojike and the appellant are members of the National Union of Mobile Marketers and Advertisers of Nigeria (NUMMAN). Owing to some disagreements, the PW1 pulled out of the Union. The appellant and the other members of the Union started threatening him and warned him to pack out of Lokoja town or he would be killed. In order to carry out their threats, the appellant along with the other members of the union started sending all kinds of strange visitors to harass him and followed the pw1 to monitor his movements and on one of such occasions, two boys armed with guns visited pw1’s house and threatened to kill him.
The prosecution in proof of its case called two witnesses and appellant testified on his own behalf in his defence without calling any witness. At the end of the evidence of the prosecution, a submission of no case to answer was made on behalf of the appellant which the trial Court upheld, discharging the appellant of criminal conspiracy, criminal breach of trust and theft contrary to Sections 97 (1), 312 and 287 of the Penal Code respectively. The appellant was then only charged for the offence of criminal intimidation contrary to Section 397 of the Penal Code.
The trial Court at the end of the hearing convicted the appellant and sentenced him to a fine of N2,000.00 or 12 months imprisonment in case of default for the offence of criminal intimidation. The appellant dissatisfied appealed to the High Court which affirmed what the trial Court did and the appellant aggrieved appealed to the Court of Appeal, Abuja Division to contest the validity of his conviction and sentence but the Court below agreed with the High Court and further dissatisfied, the appellant has appealed to the Supreme Court.
On the 26th October, 2017 date of hearing, learned counsel for the appellant, J.A.Akubo Esq, adopted his brief of argument, filed on 10/9/2012 in which he raised two issues for determination which are thus:
1. Whether having regard to the totality of evidence and the surrounding circumstances in this case, the Court of Appeal was right in affirming the decision that the prosecution proved its case beyond reasonable doubt against the appellant and thereby affirmed his conviction and sentence. (Grounds 1, 3 and 4).
2. Whether the police informant (PW1) in this case suffered any injury by the conduct of the appellant (Ground 2).
Ibrahim Sani, Attorney General of Kogi State for the respondent adopted its brief of argument settled by J.A Abrahams Esq. the then Attorney General of Kogi State. The brief was filed on 29th November, 2012 and deemed filed on 9th October, 2013. He identified two issues for determination which are thus:
1. Whether having regard to the totality of the evidence adduced at the trial Court below was right in affirming the conviction and sentence of the appellant.
2. Whether the prosecution has to prove physical injury to sustain the charge of criminal intimidation under Section 397 of the Penal Code.
I shall utilise the issues as crafted by the respondent in the determination of this appeal as they are easy to use.
ISSUES 1 & 2
These question the rightness of the decision of the Court of Appeal affirming what the two Courts below did and if physical injury is necessary to sustain the charge of criminal intimidation.
Learned counsel for the appellant submitted that a critical examination of the entire evidence in the record in relation to the statutes and that of the Police informant (PW1) in this case in National Union of Marketers and Advertisers of Nigeria (NUMAN) would show that the appellant would not commit the offence of criminal intimidation that the findings of the lower Court cannot be sustained in law as they have not discharged the onus of proof beyond reasonable doubt. He cited Section 138 (1) of Evidence Act, Laws of the Federation, 2004, now Section 135(1) of Evidence Act, 2011(as
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amended) ; Kabir Almu v The State (2009) 10 NWLR (Pt. 1148) 31 at 46 etc.
That the proof beyond reasonable doubt demands that the prosecution must adduce credible and adequate evidence proving all the essential ingredients of the offence. He cited The State v Azeez & 5 Ors (2008) 14 NWLR (Pt. 1108) 439 at 478; FRN v Mohammed Usman & Anor (2012) 8 NWLR (Pt. 1301) 141 at 167.
For the appellant it was contended that the findings of the lower Court should be disturbed as they are perverse not being supported by credible evidence before the trial Court. He cited Action Congress of Nigeria v Sule Lamido (2012) 8 NWLR (Pt.1303) 560 at 594; Bright v The State (2012) 8 NWLR (Pt. 1302) 297 at 323-324.

That there was no independent and material witness called by the prosecution to authenticate what PW1 alleged to prove that the offence had been proved beyond reasonable doubt as required by Section 138 (1) of the Evidence Act, 2004.
Learned Counsel for the appellant went on to state that the defence put up by the appellant was not considered by the trial Court including the uncontradicted evidence of the DW3 and the failure ought to have made the appellate Courts to re-evaluate the evidence before it on the printed record of appeal. He cited Uche-Williams v The State (1992) 10 SCNJ 74 at 80;
Ndukwe v The State (2009)7 NWLR (pt.1139)43 at 85; Samuel Omobo v COP (1965-1966) NMLR 42.
That the fair hearing right of the appellant was breached when the lower Court failed to consider the submission of counsel for the appellant over the findings of the trial Court to the effect that PW1 should park out of Lokoja as a threat or criminal intimidation. He referred to Gbadamosi v Olaitan Dairo (2007) 3 NWLR (Pt.1021) 282 at 306-307; Oyewole v Karimu Akande & Anor (2009) 15 NWLR (pt.1163)119 at 148;
Amanchukwu v FRN (2009) 8 NWLR (pt.1144) 475 at 486.
Learned counsel for the respondent submitted in response that they as prosecution had proved the case of criminal intimidation beyond reasonable doubt and the Court below was right in concluding so. He cited
Obiakor v The State (2002) 6 SCNJ 193 at 202;
State v Aibangbee (1988) 7 SC (pt. 1) 96 at 132-133 etc.
That a Court can convict on the evidence of one single witness once the witness can be believed given all the circumstances of the case that a single credible witness can establish a case beyond reasonable doubt. He cited Akpabio v The State (1994) 7 – 8 SCNJ 429 at 458.
The learned Attorney General further submitted that there is no basis for this Court to interfere with the concurrent findings of the Lower Courts on the issues of facts. He cited Ugbo v Aburime (1994) 9 SCNJ 23 at 38; Oshatoba v Olujitan(2000) 2 SCNJ 156 at 176 etc.
That the concept of reasonable doubt is not fanciful doubts but doubts borne out by evidence and credible evidence at that. He referred to Mufutau Bakare v The State (1987) 3SC at 33.
The stance of the appellant is that there is no basis for his conviction on the offence of criminal intimidation as what transpired between him and the complainant, PW1 was not such as could be taken that the proof of the offence beyond reasonable doubt. That there was poor evaluation of the evidence proffered before the Court.
The respondent’s position is that the altercation that occurred showed that the PW1 was threatened and serious enough to meet the standard of proof beyond reasonable doubt of the offence of criminal intimidation.
It is to be noted that the onus is always on the prosecution to prove all the ingredients of the offences charged and the standard of proof is beyond reasonable doubt in keeping with Section 135 (1) of the Evidence Act, 2011 as amended. That is not to say proof with absolute certainty, but what is required is that the ingredients of the offense charged are proved as expected or required by law and to the satisfaction of the Court. This onus in a criminal trial rests throughout the proceedings on the prosecution to prove the guilt of the accused beyond reasonable doubt, it is not akin to proof beyond the shadow of doubt. See Obiakor v The State (2002) 6 SCNJ 193 at 202 per Kalgo JSC, State v Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133; Aric v The State (2009) 16 NWLR (pt.1068) 443 at 457;Kabir Alma v The State (2009)10 NWLR (pt. 1148) 31 at 46.
The Court of trial, the learned Magistrate in his summarisation had found that the prosecution had proved its case against the appellant beyond reasonable doubt and convicted the appellant pursuant to Section 397 of the Penal Code Law.
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The Court below per Bada JCA summing up what had happened in the two Courts below it, that is the trial Magistrate Court and the High Court in its appellate jurisdiction held thus:
“My conclusion on this issue is that the Appellant has not been able to show that the findings of the lower Court is perverse or that has occasioned a miscarriage of justice, therefore, it is my view that the prosecution has proved its case against the appellant beyond reasonable doubt and the lower Court came to the right conclusion that the offence of criminal intimidation contrary to Section 397 of the Penal Code has been proved against the Appellant.”
For a clearer view the salient part of the evidence proffered by the prosecution would be put on display and that of PW1 is thus:
“I came to Lokoja on 12/3/2007 and the 2nd accused person gave the information to the 1st accused person. I was sweeping my premises when the accused persons broke in to my sitting room. They replied that it was an information given to them that made them to come to my house. They then turned and left my house on knowing my house at Lokoja. After two days, the accused persons called me to join them and they told me to pack out of Lokoja. After two days, the accused person called me to join them and they told me to pack out of Lokoja or they will kill me. I ran to Abuja to my family on several occasions. I went to my lawyer to complain and he advised me to register my own company, which I did the accused person also came to my place of business in Lokoja. I moved my office to my house yet the accused persons followed me that I must move out of Lokoja. The 2nd accused person told me that I must come and join them in their business or they will kill me as he knows the Inspector General of Police. On 1/12/2006, when I bought my car, the accused person brought poison to me through the 2nd accused and force me to drink it but I refused to drink it. I reported the matter to ‘B’ Division, Nigeria Police. On 28/3/2007, two boys came to my house with pistol. I thought they will shoot me on the way. I called a Police Officer on phone, but the call did not get through. I called another Police Officer by name Segun and it did not go.”
The Court of Appeal in re-evaluating what the High Court did in relation to its review of the findings of the trial Court did state as follows:
“(i) That the instances cited by the PW1 established the ingredients of the offence of criminal intimidation.
(ii) That to ask PW1 to pack out of Lokoja is a threat, as this will diminish his freedom to act voluntarily and to do his business without let and hindrance
(iii) That even when he moved his office to his house, they still followed him there that he must pack out of Lokoja.
(iv) That the appellant was usurping the function of the regulatory body.
(v) That the appellant went beyond his (sic) boundary by threatening PW1 to pack out of Lokoja.
(vi) That the appellant threatened to kill PW1
(vii). That the threat to pack out of Lokoja was a breach of his fundamental right under Section 41, of the Constitution of Federal Republic of Nigeria 1999. A careful perusal of evidence of PW1 together with the review of the findings of the trial Court would reveal that the lower Court was right to conclude that the offence of criminal intimidation has been proved against the appellant.
The PW1 need not suffer any physical injury before it could be said that the prosecution has proved its case beyond reasonable doubt borne out by credible evidence.”
Also to be stated is that the angle taken by the appellant that the prosecution and later the trial Court relied on the evidence of PW1 alone, is a stand point that would not stand the test of the law or practice as a Court can convict on evidence of one single witness whose testimony can be believed given the circumstances of the case. That is to say that a sole credible witness can establish a case beyond reasonable doubt, particularly in circumstances where no corroboration is required. See Akpabio v The State (1994) 7 – 8 SCNJ 429 at 458.
To posit that the prosecution to prove criminal intimidation needs establish physical injury is a pedestrian viewpoint if I might humbly say so. This is because the need for the proof of a personal physical injury suffered by the complainant and in this case the PW1 is not an element or ingredient of the offence of criminal intimidation in establishing it as an offence worthy of conviction. It is enough if the prosecution is able to establish that the accused and in this case the appellant made a threat by which the victim is thrown into fear of a harm to himself or any other person of an instant harm. What the prosecution needs to prove are:
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a. That the accused threatened the complainant or some other persons.
b. That the threat was of some injuries to him.
c. That it was given to cause alarm to him or to cause him not to do or omit to do any act which he is legally entitled to or not bound to do.
From the communication between the appellant and PW1 though, most of the communication was from the appellant asking PW1 to pack out of Lokoja with a threat and when he moved to his office, the appellant and his people came there to threaten him and followed him to his house with threat of death. Clearly the three ingredients or elements of the offence under Section 397 of the Penal Code Law are made out. This is the fulcrum of the concurrent findings of the three Courts below and in:
Action Congress of Nigeria v Sule Lamido & 40 Ors (2012) 8 NWLR (Pt.1303) 560 at 594, this Honourable Court per Rhodes-Vivour JSC, held that:
“It is long settled that the concurrent findings of fact would rarely be disturbed by this Court, but this Court would be compelled to interfere if the findings are perverse or cannot be supported by the evidence before the Court or there is/was a miscarriage of justice or violation of some principle of law or procedure.”
Similarly, in the case of Olatinwo Nurudeen Bright v The State (2012) 8 NWLR (Pt.1302) 297 at 323 – 324, this Court stated that:
“I said that findings of fact made by the trial Court and confirmed by the Court of Appeal are very rarely disturbed or interfered with, but this Court would quickly interfere and state the correct position if satisfied that there has been exceptional circumstances such as:
(a) The findings cannot be supported by evidence or are perverse or
(b) That there was miscarriage of justice or
(c) The Court overlooked some principles of law or procedure. See also Ogbu v The State (1992) 8 NWLR (Pt.259) 255.”
The above are the general principles on which an appellate Court should act faced with concurrent findings. When the appellate Court comes to the conclusion that the trial Court did not properly advert to the evidence or give necessary consequence to the evidence given, the appellate Court is duty bound to perform the exercise. That does not mean a usurpation of the area within the exclusive preserve of the trial Court as failure of the appellate Court to do that needful is an abdication of responsibility. See Lagga v Sarhuna (2008) 16 NWLR (Pt.1114) 427 at 461.
Indeed what is before this Court are concurrent findings of three Courts including the trial Court which Court of first instance has shown that it evaluated the evidence before it within the areas that could only have been at the instance of the Court that had the singular opportunity of hearing and seeing the vital witness or witnesses when they testified and so the two appellate Courts lacked the power to interfere. This being because the exceptional circumstances on which an appellate Court could interfere or disturb an earlier finding do not exist. The same applying to this Court. See Nkebisi v The State (2010) 5 NWLR (pt.471) 492; Dokubo Asari v FRN (2009) 37 NSCQR (Pt.11) 1146 at 1173.
The appellant had wanted this Court to upset what the Court below did on the ground that the conviction of the trial Court which the High Court affirmed was based on the testimony of a sole witness, PW1. It is now settled law that the prosecution is not under any obligation to call a host of witnesses with whom it can prove the guilt of the accused appellant. This is because the fact that PW1 was the victim does not make out a necessity or need for an independent witness as in human dealings an alleged threat can emanate in a transaction between just two persons, one the person making the threat and the other, the person to whom it is made. To put across that once there is no other witness apart from the complainant, the offence cannot be established is to negate the intendment of the law and to give free hand to a person to dish out threats irrespective of the effects, injury or damage to the person and the perpetrator go scot free. It is to be reiterated that once the sole witness has proffered credible evidence uncontradicted and sufficient to satisfy the Court that the burden of proof has been discharged, the fact that that single witness is the complainant is of no moment. I rely on Olabode v The State (2009) 38 NSCQR (Pt.1) 313 at 332; Buba v The State (1994) 7 – 8 SCNJ 472 at 478; State v Olatunji (2003) 14 NWLR (Pt.839) 138 at 167 – 168.
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To answer the question whether the Court of Appeal was right in upholding the concurrent findings of the two Courts below it. That is whether at the trial Court the offence charged under Section 396 Penal Code Law had been proved beyond reasonable doubt. I would answer in the affirmative in that the prosecution respondent established the elements of the offence beyond reasonable doubt as the proof was borne out by the evidence from credible witness. I say so bearing in mind that not all doubts are reasonable and where they are not reasonable or fanciful doubt or imaginary doubt or speculative doubt, a doubt not sustained by the facts and circumstances of the case. In the case in hand there was sufficient evidence borne out of the record from which the proof beyond reasonable doubt was easily elicited and the concurrent findings were well situated, thereby staying the hand of this Court from interfering. See Mufutau Bakare v The State (1937) 3 SC 33 per Oputa JSC; State v Aibangbee (supra).
From the foregoing, there is clearly no merit in this appeal. I hereby order that the appeal is dismissed. I affirm the decision of the Court of Appeal in its affirmation of the judgment of the High Court which in turn affirmed the judgment, conviction and sentence of the trial Magistrate Court.
Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the opportunity of reading in draft the leading judgment prepared by my learned brother, Peter-Odili JSC. I entirely agree that this appeal has no merit and that it should be dismissed.
Accordingly I too hereby dismiss the appeal. The decision of the Court of Appeal is hereby affirmed.
CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment just delivered by my learned brother Mary Ukaego Peter-Odili, JSC.
The judgment is well researched and reasoned. I do not have any useful thing further to add. I adopt the judgment as mine and also dismiss the appeal as lacking in merit
AMIRU SANUSI, J.S.C.: The appellant herein, along with two other co-accused person were arraigned before a Lokoja Chief Magistrate Court (the trial Court) for committing the offences of criminal breach of Trust, theft, criminal conspiracy and criminal intimidation, contrary to Sections 97 (1), 306, 287, 322 and 397 of the Penal Code. At the close of the prosecution’s case, the defence counsel made a Submission of No Case to Answer, which the trial Court upheld in respect of all the offences except the offence of criminal intimidation, hence the appellant was charged with that offence, contrary to Section 397 of the Penal Code. At the end of the trial, the trial Chief Magistrate found the accused/appellant guilty of the offence of criminal intimidation and sentenced him to twelve months imprisonment or to pay an option of fine of N2,000.00. The appellant became unhappy with that conviction and sentence by the trial Court hence he appealed to the High Court of Kogi State, Lokoja, sitting in its appellate jurisdiction which affirmed the appellant’s conviction and sentence by the trial Court. Dissatisfied with the judgment of the High Court (the intermediate Court), the appellant appealed to the Court of Appeal, Abuja division (the lower Court or Court below) which affirmed the decisions of the two Courts below. Still dissatisfied by the judgment of the lower Court, he further appealed to this Court.
Briefs of argument were filed and exchanged by parties. The appellant’s learned counsel raised two issues for determination while the respondent’s learned senior counsel who is the Hon. Attorney General of Kogi State, Ibrahim Sani Mohammed SAN, also identified two issues for the determination of this appeal which are identical to those raised by the appellant. Both the facts giving rise to this appeal and the issues for determination have been ably and adequately set out in the lead judgment and therefore need not be repeated here. To my mind, the salient point calling for consideration in resolving this appeal is whether the prosecution had led adequate and credible evidence in proof of their allegation of criminal intimidation against the appellant leading the appellant’s conviction by the trial Court and also ultimately leading to concurrent findings of the two Court’s below affirming the trial Court’s conviction and sentence of the appellant of the offence of criminal intimidation.
For the prosecution to establish the offence of criminal intimidation under Section 397 of the Penal Code, it has the onus to prove the under mentioned ingredients in order to obtain conviction. The ingredients of the offence are listed hereunder:
(a) That the accused person threatened the complainant or some other person.
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(b) That the threat was of some injury to him
(c) That it was given to cause alarm to him or to cause him not to do or to omit to do any act which he is legally entitled to do or not bound to do.
In this instant case evidence abound from the testimony of the complainant i.e. PW1 when he testified, inter alia:
(i) That the appellant and some other told him to pack out of Lokoja or else they were going to kill him hence he reported to his lawyer who advised him to register a complain.
(ii) The latter followed him to his house to which he relocated his office and carried out the same threat.
(iii) One of the accused persons told him that he must join them in their business or else they will kill him after all he (2nd Accused) knew the Inspector General of Police.
(iv) That the 1st accused person now appellant, brought poison to him through the 2nd accused and tried to force him to drink it but he refused hence he reported the matter to Nigeria Police B Division.
(v) Also, on 28/3/2007 some boys came to his house/office with pistol and threatened to kill him.
All these pieces of evidence of PW1 were not controverted as shown on the record. To my mind therefore, they provided sufficient instances of threat to the life of the complainant or at least of injury to be caused on him. Such series of threats were obviously calculated at or aimed at seeing that he the PW1 (complainant) either leaves Lokoja town or to join the business of the gang of persons accused in the case among whom the appellant was a prominent member if not a master minder. It is my view that the lower Court’s judgment now appealed against can not be faulted when that Court affirmed the findings of both the High Court (intermediate Court) and the Chief Magistrates Court (the trial Court) and on arriving at the conclusion that the prosecution had proved the offence of criminal intimidation, contrary to Section 397 of the Penal Code beyond reasonable doubt against the present appellant. lt needs to be emphasised that in an offence under Section 397 of the Penal Code it is immaterial that the complainant did not suffer actual physical injury, provided the prosecution proved that there was actual threat to his life or to injure him, which had obviously caused genuine fear in him of being killed or causing him harm or bodily injury. In this instant case, all the three ingredients of the offence of criminal intimidation, under Section 397 of the Penal Code were duly established against the appellant and as such he was rightly convicted and sentenced by the learned trial Chief Magistrate and also as rightly affirmed by the two lower Courts.
My lords, permit me to comment on or emphasise on the requirement of proof of crime by the prosecution in criminal matters. All our previous constitutions in this country had made adequate provisions affecting our criminal legal system especially on the age-long principle of law that an accused is presumed innocent until he is proven guilty.
This presumption of innocence places the onus of proof on the prosecution to prove a case beyond reasonable doubt, in accordance with Section 138 of the Evidence Act, Cap 112 of Laws of the Federation. The prosecution must, in the process to prove all the ingredients of the offence charged by producing material and credible evidence through vital witness or witnesses to testify during the proceedings. See Afolalu vs The State (2010)43 NSCQR 258/259. Once any of the ingredients of the offence charged is not proved, the prosecution shall fail and the accused must be acquitted of the offence charged as the burden never shifts.
My attention has been attracted by the submission of the learned counsel for the appellant when he raised some insinuations or sentiments that the trial Court relied only on the testimony of one witness i.e the PW1, to convict the appellant. With due defence to the learned counsel, once the prosecution was able to discharge its burden of proof of the offence charged, the Court of trial can convict the accused even on evidence of a single witness as in this instant case. Aruna v The State (1990)6 NWLR (pt.155)125; Okosi vs AG Bendel State (1985) 1 NWLR (pt.100) 642; Nwachukwu v The State (1985) 1 NWLR (pt.ll) 218; Ani v The State (2003)11 NWLR (pt.830)142; Afolalu v The State (supra). It is a well settled principle of law, that the prosecution is not bound to call every person that was linked to the offence by physical presence or otherwise to give evidence what he perceived. Once person who can testify to the actual commission of the crime and the other relevant ingredients has done so,
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it will suffice for the satisfaction of the principle of proof beyond reasonable doubt as stipulated by Section 138 of the Evidence Act. See Obue v State (1976) 2 SC 141; Sadau v State(1968)All NLR 124; The State v John Ogunbanjo & Anor (2001)12 NWLR (pt.678) 576; Shurumo vs The State (2010)44 NSCQR 159. As a matter of fact, a single witness who gives cogent eye witness account of the incident, as in this instant case, will be sufficient. See Odili vs State (1977) 4 SC 1; Shurumo v The State (supra).
Finally, in this instant appeal, it is noted by me that there exist concurrent findings of three lower Courts all establishing the guilt of the appellant. As a matter of practice and policy, this Court does not ordinarily disturb or interfere with concurrent findings of lower Courts except where special or exceptional circumstances exist as would warrant this Court’s interference. Some of this exceptional circumstances border on the fact that the findings are perverse or there had been apparent misconception or misapplication of law. See UGBO VS ABURIME (1994)9 SCNJ 23 at 38; Oshatoba v Olujitan (2000)2 SCNJ 156 at 176, Action Congress of Nigeria vs Sule Lamido & 4 Ors (2012) 8 NWLR (pt.1303)360. In this instant appeal I have not been able to see any special or exceptional circumstance bordering on any of the above mentioned vices or features in the findings of facts or misapplication of law or that any miscarriage of justice was occasioned in the findings of the three lower Courts as would justify my interference with or disturbance of such findings. I will therefore refuse to interfere with same.
In the final result, I am in complete agreement with the reasoning and conclusion arrived at by my learned brother, Mary Odili, JSC. While adopting them as mine, I will also dismiss this appeal for being devoid of any merit. The instant appeal therefore fails and is accordingly dismissed by me. I duly affirm the judgment of the Court of Appeal, Abuja division which had earlier affirmed and endorsed the decisions of the two Courts below it and affirmed the conviction and sentence of the appellant by the trial Court. Appeal dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Mary Ukaego Peter-Odili, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. And it is accordingly dismissed by me.