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One cannot be convicted for criminal breach of trust and cheating based on same factual situation in respect of one transaction

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THEOPHILUS KURE v. COMMISSIONER OF POLICE (2020) LPELR-49378(SC)

In the Supreme Court of Nigeria
On Friday, 24th January, 2020
Suit No: SC.317/2018

Before Their Lordships:

OLUKAYODE ARIWOOLA, JSC
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
AMINA ADAMU AUGIE, JSC
PAUL ADAMU GALUMJE, JSC
UWANI MUSA ABBA AJI, JSC

Between
THEOPHILUS KURE               -Appellant(s)

And

COMMISSIONER OF POLICE  -Respondent(s)

LEAD JUDGMENT DELIVERED BY PAUL ADAMU GALUMJE, J.S.C.

FACTS OF THE CASE
The appellant a “veterinarian” entered into a contract with the ministry of culture and tourism, Rivers State, through one Mrs. Sokari Davies, the Director of Tourism, to supply a calf giraffe in the sum of N3.5 million. The said sum was paid on February 1, 2013 into the account of the appellant domiciled at the United Bank for Africa (UBA). The appellant promised to deliver the calf giraffe in two weeks. Several months passed, no delivery was made despite repeated demands made to the appellant to deliver. Mrs. Sokari Davies, who stood in for the ministry of culture and tourism, Rivers State, decided to check whether the money she deposited in the appellant’s account was still intact.

To her surprise, the appellant had been making piecemeal withdrawals leaving a balance N1 million in the account. She now went to court, sought for and obtained an order ex-parte, which placed lien on the appellant’s account, and by the time the order was served on the bank there was further withdrawal from the said account, which brought the balance to the credit of the appellant down to N995,000. This balance was subsequently transferred to the account of Mrs. Sokari Davies. Mrs. Sokari Davies who testified at the trial Court as PW1, reported the transaction to the police in Kaduna, where the appellant lived and the appellant was arrested and arraigned before the Chief Magistrate’s Court for the offences of cheating and criminal breach of trust contrary to Sections 312 and 322 of the Penal Code.

In a reserved judgment, delivered on the 23rd of October, 2015, the trial Chief Magistrate found the appellant guilty as charged and sentenced him to a fine of N5,000 or one year imprisonment for the offence of cheating and a fine of N8,000 or two years imprisonment for criminal breach of trust. In addition, the appellant was ordered to pay the sum of N2,505,000 as compensation to the nominal complainant, being the balance of the N3.5 million paid to the appellant by the nominal complainant for male calf giraffe, which he failed to deliver to her, since the nominal complainant had already retrieved the sum of N995,000 from the bank account of the convict at UBA Plc.

Being aggrieved, he appealed to the High Court. The appeal was heard and in a unanimous decision, the High Court dismissed the appeal and affirmed the decision of the Chief Magistrate. Once again, the appellant appealed to the Court of Appeal, Kaduna Division. The appeal was heard and in a reserved and considered judgment, the appellant’s appeal was dismissed for lack of merit. Further dissatisfied, the appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues: 1. Whether the lower Court was right to have upheld the conviction of the appellant by the lower courts for both criminal breach of trust and cheating based on the same factual situation in respect of one transaction in the same proceedings. 2. Whether the lower court was right to have relied on the judgment of the trial court to uphold the conviction and sentence of the appellant for criminal breach of trust and cheating having regard to the evidence.

APPELLANT SUBMISSION
On the first issue, the appellant submitted that while the appellant may be convicted for one of the two offences with which he was charged, depending on which one of them is properly established, he cannot properly be convicted for both offences in the circumstances of the facts and evidence of the instant case, especially, as the entire evidence is hinged on one and the same factual situation. It was further submitted that the two offences relate to different scenarios with different ingredients and cannot co-exist in the same factual situation borne out of a single transaction. In aid, the appellant cited R Vs Sindqir (1968) 3 ALL E.R 241 and Uzoagba Vs Cop (2014) 5 NWLR (Pt. 140) 441.

On the second issue for determination of this appeal, the appellant submitted that the prosecution did not prove its case beyond reasonable doubt and the Court of Appeal was wrong when it upheld the decision of the High Court that upheld the decision of the Chief Magistrate Court. The appellant urged the court to resolve the two issues in his favour and acquit him.

RESPONDENT SUBMISSION
On issue one, the respondent submitted that the Court of Appeal was right to have held that the appellant could be convicted for both criminal breach of trust and cheating based on the same factual situation in respect of one transaction in the same proceedings. In aid, respondent cited Section 213 of the Criminal Code and Garba Mailayi & Anor Vs State (1968) ANLR 117, amongst others. In a further argument, the respondent submitted that the appellant at the trial before the Magistrate Court did not canvass for separate trial for both offences despite the fact that he could have persuaded the Trial Court for a separate trial pursuant to the provisions of Section 213 of the Criminal Procedure Code. Still in argument, the respondent submitted that the appellant has failed to show that he was prejudiced by his trial and conviction for the said offences in a single proceeding based on the same set of facts.

On issue two, the respondent submitted that the Court of Appeal was right to have relied on the judgment of the High Court to uphold the conviction and sentence passed on the appellant for criminal breach of trust and cheating, having regard to the totality of the evidence adduced before the trial Court. According to the respondent, the appellant at the Court of Appeal did not canvass that the offences with which he was charged, were not established against him beyond reasonable doubt as such he cannot raise that issue before the Supreme Court. In aid, the respondent cited Zakari vs. Nigerian Army (2015) 62 NSCQR (pt. 1) 214 at 254 amongst others.

RESOLUTION OF ISSUES
According to the court, by the appellant’s first issue, it is very clear that what he questions is his conviction and sentence for two offences on a single transaction based on the same factual situation which line of argument was admitted by the respondent in the respondent’s brief of argument. According to the court, all the submissions made by the respondent regarding Section 213 of the CPC and Garba Mailayi & Anor Vs State (1968) ANLR 117, go to no issue as it has to do with the trial of joint offences and not conviction and sentence. According to the court, trial and conviction are distinct and separate words that carry different meanings. Trial is a formal judicial reception and examination of evidence in the process of determination of legal claims or in criminal matters, whether the prosecution has proved its case in an adversary proceeding while conviction is a final decision in which a person is found guilty of a criminal offence upon a criminal trial by the court. It is the end product of the evidence received in the course of trial.

Also, that the ingredients leading to the offences of cheating and criminal breach of trust are not the same by Section 320(a) of the Penal Code and Section 311 of the Penal Code. The offence of criminal breach of trust is punishable under Section 312 of the Penal Code. That for the prosecution to succeed in establishing the offence of criminal breach of trust, it must prove the following ingredients:- 1. That the accused person was entrusted with property or dominion over it. 2. That he misappropriated it converted it to his own use or disposed of the said property. 3. That the accused did so in violation of any direction of law, prescribing the mode in which such trust was to be discharged or any legal contract expressed or implied which he had made concerning the trust or that he intentionally allowed some other persons to misappropriate, convert or dispose of the property in violation of the mode of execution of the trust. Uzoagba Vs C.O.P (2014) 5 NWLR (Pt.1401) 44.

That while the offence of cheating under Section 322 of the Penal Code involves deceit and or fraudulent and dishonest inducement of the person so deceived to part or deliver the property in issue to any person, the offence of criminal breach of trust is not so. Thus, by the different ingredients that lead to the commission of the two offences with which the appellant was charged and convicted, there is no way that the appellant could be properly convicted for the two offences, involving the same sets of facts of delivering money to the appellant by the Rivers State Ministry of Culture and Tourism for the contract of supply of calf giraffe. The first issue was resolved in the appellant’s favour.

In resolving the second issue, the court stated that although the appellant in his evidence-in-chief told the court that he is a veterinarian and that he holds HND from the College of Agriculture and Animal Science Kaduna, no one gave evidence that the Ministry of Culture and Tourism, Rivers State was deceived and fraudulently induced to deliver the N3 million to the appellant. Since there was no evidence of deceit on the part of the appellant, the trial court was wrong in finding him guilty of the offence of cheating. The court stated that it would interfere with concurrent decisions of two or three lower courts, where same is unreasonable and cannot be supported by evidence and the law.

The next question was whether the prosecution established the offence of criminal breach of trust against the appellant. The court stated that all the prosecution witnesses testified that the transactions between the Ministry of Culture & Tourism, Rivers State and the appellant were based on contract between the parties and that the contract had wholly failed because of the appellant’s non-performance. According to the Court, for a criminal breach of trust to occur, there must be evidence of trust. In the instant case, the N3.5 million naira paid to the appellant included cost for logistics and procurement of the giraffe. That the appellant testified that the animal was not available in Nigeria and that its procurement was possible only in Niger Republic or Chad. Thus, was he expected to trek to these countries to procure the calf giraffe with the money advanced to him. Clearly the intention of the Ministry of Culture & Tourism, Rivers State was for the appellant to manage the money in such a way as to procure the calf giraffe. It was not its business to dictate how the giraffe was to be procured. There was no evidence that showed the beneficiary of the money that was given to the appellant to buy the giraffe was a person other than the appellant.

Furthermore, the court stated that the procedure adopted at the Chief Magistrate Court, convicted the appellant on a defective charge, which stipulated that he committed criminal breach of trust and cheating. That although the error was not material as to vitiate the proceedings in this case, it showed how desperate the trial court wanted to convict the appellant. The court concluded by holding that the transactions involved in this case were based on contractual agreement, as there is no evidence of criminal breach. Relying on Onagoruwa vs State (1993) LPELR – 43456 (CA) at pages 67- 68 Paras, F- B., the Court held that the N3.5 million was clearly a consideration for the contract between the parties which had wholly collapsed. The remedy which lies in civil litigation. The second issue was again resolved in favour of the appellant.

HELD
On the whole, the Court found merit in the appeal and accordingly allowed same. The conviction and sentence passed on the appellant as affirmed by the Court of Appeal was set aside. The appellant was therefore acquitted and discharged.

Appearances:
L. A. O Nylader SAN, with him, J. F Adamu
and Seember Wayo Esq.                                                    -For Appellant

MR. E. E. Ekhasemomhe, with him, P. O Iyaji     -For Respondent
Compiled by LawPavilion


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