In The Supreme Court of Nigeria
On Thursday, the 21st day of February, 2019
SC.960/2017(CONSOLIDATED)
Before Their Lordships
MARY UKAEGO PETER-ODILI – Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE – Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE – Justice of The Supreme Court of Nigeria
EJEMBI EKO – Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE – Justice of The Supreme Court of Nigeria
Between
OLADIMEJI MOHAMMED EDUN
-SC.960/2017
AND
ZARAB VENTURES LIMITED
-SC.961/2017 – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA
-SC.960/2017
-SC.961/2017 – Respondent(s)
Other Citations
INTRODUCTION:
This appeal borders on the offence of Criminal Misappropriation.
FACTS:
These consolidated appeals – SC.960/2017: OLADIMEJI MOHAMMED EDUN v. FEDERAL REPUBLIC OF NIGERIA, and SC.961/2017: ZARAB VENTURES LIMITED v. FEDERAL REPUBLIC OF NIGERIA which were argued, separately, on 28th November, 2018 are against the decision of the Court of Appeal sitting in Ilorin which affirmed the decision of the Kwara State High Court (Coram: M. AbdulGafar, J.) convicting the Appellant for the offence of Criminal Misappropriation in charge No. KWS/20C/2015. Because of the commonality of the facts and the issues in the appeal, including the Counsel on both sides in the two appeals, it became necessary that judgments in the two appeals be consolidated though the appeals retained their distinct and separate identities.
The Appellant in the appeal No. SC.960/2017 was the 1st Accused at the High Court, and also the 1st Appellant at the Court of Appeal. He was the Chief Executive Officer and the Managing Director of Zarab Ventures Limited, the Appellant in the appeal No. SC.961/2017 and the 2nd Appellant at the Court of Appeal. The facts of the case are that the 1st Accused was the Managing Director/Chief Executive Officer of the 2nd Accused (a company registered in Nigeria as a Limited Liability Company under the Companies and Allied Matters Act, as amended). The 1st Accused was also a politician. He was a member of the House of Representatives at the National Assembly. He was at some material time a member of the Political Party in power in Kwara State. Through the 1st Accused the 2nd Accused was awarded contracts for the drilling and provision of 43 motorised boreholes in some Local Government Areas of Kwara State. The contracts were awarded by the Kwara State MDG-CG’s at the rate of N2,013,033.75 per borehole, which translated to the total sum of N86,560,451.25. The contracts were awarded in three tranches of 40, 40 and 3 boreholes vide letters dated 27th April, 20091; 3rd July, 2009, and 30th July, 2009. At the material time the PW.3, Ademola (Demola) Banu, was the officer in charge of MDG projects. He was also the Special Assistant to the Governor of Kwara State on MDG projects. He later became the Commissioner for Finance in the same regime.
The three (3) charges related to a total sum of N14,000,000.00 paid in three tranches of N6,000,000.00, N7,000,000.00 and N1,000,000.00 by the 1st Accused from the account of 2nd Accused allegedly to some officials of Kwara State Government for onward payments to some third parties. The High Court believed the 1st Accused on his assertion that he paid the sum of N6,000,000.00 and N7,000,000.00 (a total of N13,000,000.00) to the PW.3, and N1,000,000.00 to Tunji Moronfoye, who, between 2007 – 2011, was Special Assistant to the Governor of Kwara State on Millennium Development Goals (MDG). He was later, in 2011, appointed to the Governor’s Cabinet as the Commissioner for Information and Communication. Tunji Moronfoye, like the then Governor of Kwara State (said to be Dr. Bukola Saraki), did not testify. The PW.1 and PW.2 were both staff of the Economic and Financial Crimes Commission (EFFC). They were in the team that investigated the facts on which the 1st and 2nd Accused were charged and tried for Criminal Misappropriation. The totality of their evidence was that the 1st Accused admitted that the contracts were awarded to the 2nd Accused for the drilling and provision of 43 motorised boreholes and that some payments for the contracts had been made to the 2nd Accused, and further that on three occasions the Accused paid sums totaling N14,000,000.00 “to State officials” out the contract sum. The PW.1, in particular, testified that the 1st Accused - admitted in his handwriting that he paid certain individuals the money out of the contract sum as the reason why he could not perform the contract. The contract sum include (sic) the profit margin of the accused. It is unlawful for the accused to give part of the money to public officials who awarded the contract. The accused has done such (some?) substantial job on the ground.
The PW.2 recorded some of the extra-judicial statements of the 1st Accused and through him these statements, Exhibit 11, 12, 13 & 14, were tendered in evidence unopposed. In Exhibit 12 the 1st Accused further stated, that the PW.3 told him that the Governor had asked that the sum requested by the PW.3 be dropped “for politicians out of the contract sum”. This line of defence is to the effect that the two Accused, particularly the 1st Accused, paid the total sum of N14,000,000.00 forming the basis of the three charges of criminal misappropriation, to the PW.3 and Tunji Moronfoye as part of some political arrangement, at the instance of the Governor of Kwara State, designed to maintain some local politicians. In Exhibit 11 the 1st Accused maintained that they could not afford to go back to the sites to complete the jobs contracted because of those 3 payments totaling N14,000,000.00. The PW.3’s attempt or efforts to deny this political arrangement did not impress the trial Court as credible or truthful. The High Court, holding or finding that the PW.3 was “not a truthful witness”, disbelieved the entirety of PW.3’s evidence. The High Court in a well considered Judgment convicted the Appellants for the Offence of Criminal Misappropriation. Dissatisfied, the Appellant’s appeal to the Court of Appeal was dismissed hence a further appeal to the Supreme Court.
ISSUES:
The Court determined the appeal on this sole issue couched as follows:
“Having regards to the totality of evidence in and the special circumstances of this case, was the Lower Court not wrong in affirming the decision of the trial High Court that Exhibits 10 – 14 amounted to confession to the offence charge on the basis of which the appellant could be and was convicted without due regards to the explanation of the appellant on the amount of N14m, the subject of the work done by the appellant viz-a-viz the amount received under the contract.”
DECISION/HELD:
On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the Court of Appeal was set aside. The Appellants were discharged and acquitted.
