The Federal Capital Territory (FCT) High Court, Maitama, Abuja, on Tuesday, threw out five confessional statements credited to a defendant facing trial for alleged diversion of N26 billion severance claims meant for incapacitated and deceased workers of the defunct Power Holding Company (PHCN).
The court rejected the confessional statements after upholding the objection of the prime defendant, Abiodun Hassan, who is being prosecuted alongside his firm by the Economic and Financial Crimes Commission (EFCC).
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The judge, Sylvester Oriji, ruled that the confessional statements, believed to be at the heart of EFCC’s case against the defendants, could not be admitted as exhibits on the grounds that they were obtained under duress.
The exact confessions contained in the statements credited to Mr Hassan were not disclosed in open court.
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However, the court’s decision means that whatever evidence EFCC might have sought to rest its case on in the statements would not be used by the court to arrive at its decision on the case eventually.
The EFCC, in February 2021, arraigned Mr Hassan alongside his company, Bentworth Insurance Brokers Limited, on five counts, accusing them of dishonestly misappropriating outstanding N26 billion insurance premiums and claims belonging to the deceased and incapacitated PHCN workers.
The PHCN was wound up in 2013 following the privatisation of Nigeria’s electricity sector.
The prosecution had called three prosecution witnesses – Efe Awhinawhi, Adeleye Samson and Odofin Christopher, the investigative officer – to prove the alleged N26 billion fraud, when the main trial was paused for a trial-within-trial.
The defence called for the mini trial after prosecution lawyer Christopher Mshelia sought to tender, through a prosecution witness, the disputed statements credited to Mr Hassan as exhibits.
Objecting to the admissibility of the statements as exhibits, defence lawyer Adeolu Salako argued that they were obtained from his client under duress. He said the statements were obtained during his client’s detention for several days in EFCC’s custody in 2016.
The trial judge, Mr Oriji, then ordered for a trial-within- trial to ascertain the voluntariness, thus the admissibility, of the statements.
Full reasons defendant’s confessional statements were rejected
Ruling on the trial-within-trial, Mr Oriji held that the prosecution failed to prove its claim that the first defendant made the statements voluntarily.
He held that the evidence led by the prosecution showed that the first defendant reported at EFCC on the 22 September 2016.
“The prosecution, which has the burden to prove all material facts to show that the first defendant made the statement voluntarily, did not adduce any credible evidence to prove that the first defendant made the statement the day he reported.
“For instance, the prosecution ought to have produced the visitor’s register to show when the first defendant reported at the EFCC.
“The court believes that the evidence of the first defendant and defence witness number two (DW2), that the first defendant reported at the EFCC on 18 September 2016,” he stated.
He noted that the first defendant said in his evidence that in the evening of the next day that Madaki Yakubu (PW1), interviewed him and started asking him questions, but that he did not want to write the way Yakubu asked him to write.
Mr Oriji noted that the first defendant was taken back to cell that weekend until the following Monday.
“The court believes his evidence that on 22 September 2016, he complied with the instruction of Madaki Yakubu on how to make his statement when he realised that they would not be released if he did not cooperate with them.
“The point must also be made that the prosecution did not challenge or report the evidence of the first defendant that he spent about eight days in the EFCC custody before he was released,’’ he held.
The court held that it meant that the first defendant was in EFCC custody when he made his statements.
He held that where it was represented to the court that the confession was or may have been obtained by oppression, adding that the court would not close its eyes to that fact.
“By Section 29 (5) of the Evidence Act, oppression includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture.
“The court holds that since the first defendant was in custody of EFCC when he made his statement on 22, 23, 24 and 26 September 2016, the statements were obtained by oppression.
“The prosecution failed to prove beyond reasonable doubt that the confessional statements of the first defendant were not obtained in a manner contrary to the provisions of Section 29 of Evidence Act.
“In other words, the prosecution failed to prove beyond reasonable doubt that the first defendant made the statements voluntarily.
“The making and taking of the statements of the first defendant sought to be tendered by the prosecution were not, recorded electronically on a retrievable video compact disc or such other audiovisual means, as stipulated by Section 15 (4) of the Administration of Criminal Justice Act,” he said.
He held that the six statements of the first defendant were not taken in the presence of a legal practitioner of his choice.
“By enacting the Administration of Criminal Justice Act, the National Assembly put in place some legislative protocols in sections 15 (4) and 17 (2) for law enforcement agencies to follow when obtaining statements, especially confessional statements from suspects.
“This is to ensure that such statements are made voluntarily by suspects. The court reasons that sections 15 (4) and 17(2) of the said Act were not to be violated.”
The judge concluded by holding that the objection to the admissibility of the six extrajudicial statements of the first defendant at the EFCC is sustained.
The first defendant’s statements were rejected and marked rejected.
Trial-within-trial
EFCC presented two witnesses during the trial-within-trial. The two witnesses are EFCC officers. The first prosecution witness, Madaki Yakubu, informed the court that no video or audio recording was done during the recording of the disputed statements, but insisted that someone was with Mr Hassan while making his statements.
The second prosecution witness, Odofin Christopher who is also the Investigative Police Officer (IPO), also told the court that he used cautionary words while obtaining the defendant’s statement but did not use threats.
Mr Hassan who also appeared as the first defence witness in the trial-within-trial, informed the court that nobody was with him while being interviewed.
He told the court that the IPO shouted at him and threatened that refusal to comply with his order would elongate his detention.
The defendant also said his statement was dictated to him.
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The second defence witness, Sunday Olowoseun, a friend of the defendant, testified that he accompanied Mr Hassan to the EFCC on 18 September 2016. He said Mr Hassan’s wife was with them during the visit to EFCC. But he said he and Mr Hassan’s wife were denied entry into the interrogation room.
Mr Hassan’s lawyer argued against the admissibility of the statements, contending that the prosecution violated legal provisions by obtaining the statement under duress. He cited Section 29 of the Evidence Act) to drive home his point. He also submitted that the EFCC failed to treat the suspect with dignity upon arrest in violation of Section 15(4) of the Administration of Criminal Justice Act, 2015 ACJA. He also said the statements were not obtained as required under Sections 17(1) and (2) of the same ACJA
However, EFCC’s lawyer, Ukamaka Adagba argued that proper guidelines were followed, adding that the defendant was not subjected to torture or degrading treatment.
Charges
Mr Hassan and his firm, Bestworth Insurance Brokers Limited, are facing charges of diverting N26 billion allegedly entrusted in their care to offset the insurance premiums and claims of incapacitated and deceased PHCN workers.
PHCN was unbundled into 18 successor companies following its privatisation in 2013 in line with the Electric Power Sector Reform Act of 2005.
But more than a decade after the privatisation, outstanding severance liabilities to former PHCN staff remain partially unsettled.
Accusing Mr Hassan and his firm of criminal breach of trust, EFCC alleged that between 2013 and 2014, the defendants diverted the severance funds for deceased and incapacitated former PHCN workers in installments.
It said the money was released from PHCN STAFF SEVERANCE Benefits account with the Central Bank of Nigeria into Bestworth’s account for disbursement to deceased and incapacitated former PHCN workers.
But it said, the defendants ended up diverting the money into private accounts instead of paying the genuine owners of the funds.
EFCC alleged that the defendant’s actions constituted offences punishable under Section 315 of the Panel Code Cap 532 Laws of the Federation of Nigeria, (Abuja) 2004.
But the defendants have denied the charges, pleading not guilty to all five counts preferred against them by the EFCC.
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