that the Defendant was in actual possession. Learned Silk made reference was made to the case of HEMBE VS FRN (2014) LPELR-22705 PAGE 78 PARAS A-B PER AKOMOLAFE-WILSON JCA. A Person cannot be charged with Criminal Misappropriation when the alleged misappropriated Property was not in his possession nor can a Charge of this Offence arise when it is alleged that the Property was fraudulently acquired. In addition, there was no proof of Dishonesty, as defined in Section 16 of the Penal Code. On the assumption that indeed the Defendant misappropriated the Funds as alleged, this ought to have been clearly indicated that the Defendant did so with the intention of causing wrongful gain to himself or another or causing loss to the State. Failure to state these details meant that the element of dishonesty as contained in the Counts had not been proved. Learned Silk also placed reliance on the case of IFEANYI VS THE STATE (2014) LPELR-22984 (CA) PER SANUSI JCA AT PAGES 32- 36, where misappropriation and convert to owns use was distinguished and what the Prosecution needed to establish and the co-existing ingredients that must be simultaneously proved in order to sustain a conviction. Failure to prove these details means that the element of dishonesty was not proved. Further, the Charge was bad for duplicity, in that, having charged the Defendant in Count 8 with the Offence of Criminal Breach of Trust for the Sum of N204Million, it was incorrect to charge him yet for dishonest misappropriation over the same Money. Learned Silk, referred to the testimony of PW1, who had testified that throughout the investigation, there was no complaint from Plateau State Government on loss of Funds. This Witness had supplied the names of the Officials, such as Shem Damisa, the Accountant General and Nuhu Ali Madaki, the Deputy Director for Inspectorate II, who were alleged to have ordered payments into the Account of Ebenezer Retnan Ventures. These Officials ought to have been called, but were not. Therefore, it cannot be assumed that the payments were unauthorized or that the Defendant wrongfully authorized them or that they acted unlawfully when they made the payments. These Officials ought to have been heard before conclusions could be reached against them. In any event, the Law presumes that where evidence, is available but not called, such evidence is presumed to be detrimental to the Person withholding the evidence. According to Learned Silk, PW1 had in fact blamed Nuhu Madaki, who was the Accountant General at that time for his failure to produce the Vouchers, which would have explained the purpose of the payments and it was this failure that led to him being charged. The fact that Nuhu Madaki had been charged does not constitute proof against the Defendant nor would this Court believe his inability of producing the Vouchers without first hearing him. Therefore, he needed to have been called and the failure to do so, was fatal. Whether or not Nuhu Madaki and other Officials are standing trial and assuming they are convicted or acquitted, that would not be proof against the Defendant and the Court is not allowed to speculate or presume the existence of what is not before it otherwise it would lead to miscarriage of justice. He made reference to the cases of AHMED VS STATE (2001) 18 NWLR PART 746 PAGE 672 (SC0; ILORI VS TELLA (2007) ALL FWLR PART 393 PAGE 122 AT PAGE 139 PARAS E-G (CA); UWAJEH VS UWAJEH (2009) ALL FWLR PART 458 PAGE 287 AT PAGE 304 PARAS B-D. On the assumption that the evidence of PW1, Sunday Musa, were that, all the Drafts paid into Ebenezer Retnan Ventures were raised in the name of AllStates Trust Bank Plc., (which is not the case), the onus was on the Prosecution to produce the Staff of AllStates Trust Bank, to explain why they paid Cheques raised in the Name of the Bank into the Account of Ebenezer Retnan Ventures. He 191