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ELEMAN v. F.R.N (2020)

ELEMAN v. F.R.N

(2020)LCN/14318(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, June 04, 2020

CA/K/455/C/2018

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

SALE MOHAMMED ELEMAN APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

The Courts frown vehemently against forum shopping. In the case of Mailantarki v Tongo (2018) 6 NWLR Part 614 Page 69 at 87 Para C-G, the Supreme Court, per Eko JSC had this to say:
“The law is now quite settled that the competence of a Court to entertain a given subject matter of dispute is an essential element in determining its jurisdiction. This Court, in MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR (pt.4) 587, lists indices of when a Courts is competent to exercise jurisdiction. One of them is when the subject matter of the case is within its jurisdiction and there is no feature in the case that prevents the Court from exercising its jurisdiction. PER ADEFOPE-OKOJIE, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

In a criminal trial, the burden of proof lies, throughout, upon the prosecution to establish the guilt of the accused person beyond reasonable doubt and it never shifts. Even where the accused person in his statement to the police admits committing the offence, the prosecution is not relieved of the burden, this is so a wrong person will not be convicted for an offence he never committed. See Igabele vs. State (2006) 6 NWLR (Pt. 975) 100; People of Lagos State vs. Umaru (2014) 3 SCNJ 114 at 137; Oliver Aminu Zakariya v FRN (2018) LPELR-43999(CA) per Abiriyi JCA. PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned on 23/3/2016 before the Katsina State High Court by the Economic and Financial Crimes Commission (EFCC) on a one Count charge for criminal breach of trust, to wit:
“Charge
That you Sale Mohammed Elleman, between the 27th May, to 25th June, 2014 in Katsina within the judicial Division of the High Court of Justice of Katsina State being entrusted with certain property, to with the sum of N13,000,000.00 by one Salisu Tambaya, committed criminal breach of trust; and that you thereby committed an offence punishable under Section 312 of the Penal Code.
Dated on 27th day of October, 2015.”

In proof of its claim, the prosecution called three witnesses. In his defence, the Appellant was the sole witness. On conclusion of evidence and the filing of written addresses, the trial judge, Abdullahi Yusuf, Chief Judge, on 8/3/18 found the Appellant guilty as charged and sentenced him to three years imprisonment, in addition to paying the sum of N12,200,000.00 (Twelve Million, Two Hundred Thousand Naira) to Salisu Tambaya, referred to by the

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prosecution as “the Nominal Complainant”.

Aggrieved, the Appellant filed a five ground Notice of Appeal on 26/3/18.

In the Appellant’s Brief of Arguments prepared by Hassan M. Liman (SAN), filed on 30/11/18 but deemed properly filed on 14/3/19, three issues were distilled for determination, to wit:
1. Whether the learned trial judge was right to have brushed aside the issue of jurisdiction or challenge to his jurisdiction despite the availability of the grounds of objection in evidence before the Court.
2. Whether the trial High Court of Kastina State had the territorial jurisdiction to have tried and convicted the Appellant on the alleged offence of criminal breach of trust when none of the events constituting the facts of the case occurred in Katsina, Katsina State.
3. Whether from the available evidence on Record, the prosecution prove its case beyond reasonable doubts.

The Respondent’s Counsel, Nasiru Salele Esq., in the Respondent’s Brief of Arguments filed on 17/6/19 but deemed properly filed on 24/9/19, similarly formulated three issues for the Court’s determination, as follows:

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  1. Whether the learned trial Court (Katsina State High Court) had the requisite jurisdiction to try the Appellant on this charge.
    ii. Whether the learned trial Court properly and effectively evaluated the evidence adduced in the case before convicting and sentenced the Appellant herein.
    iii. Whether the evidence adduced before the learned trial Court support the Appellant’s conviction and sentencing.

The issues formulated by both parties are similar, I observe. I also note that the 1st and 3rd issues formulated by the Appellant question the lower Court’s jurisdiction and can both be conveniently accommodated under the 3rd issue.

I shall thus adopt the 2nd and 3rd issues formulated by the Appellant, modified for succinctness, as follows:
1. Whether the High Court of Katsina State had the territorial jurisdiction to have tried and convicted the Appellant on the alleged offence of criminal breach of trust?
2. Whether from the available evidence before the Court, the prosecution proved its case beyond reasonable doubt.

The case of the prosecution was presented, as aforesaid by three witnesses. Two of them were operatives

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of the EFCC while PW2, as described by the Prosecution, was the Nominal Complainant.

PW1, Agbo Bala Usman, from the EFCC, Kano Office, tendered the complaint of the Nominal Complainant, as well as the statement of the Appellant, in Hausa and translated into English. The Nominal Complainant, Salisu Tambaya, PW2, testified that he gave the Appellant the sum of Thirteen Million Naira spread over some months from May to June 2014 which money was paid into the Appellant’s account, “to do business”. The Appellant promised to give him profit. When he stopped giving him profit he asked for the return of his money but that the Appellant had been dodging him. In consequence, he reported the matter to the EFCC.

PW3, Nabil Ahmad Tahir, an Investigator with EFCC, testified that he investigated the complaint. On receipt of the report, he invited the Appellant for an interview and to write a statement. His investigation revealed that sometime in 2014, PW2 and the Appellant entered into an agreement “to do foreign exchange business” after which PW2 transferred payments to him of N13,000,000.00 (Thirteen Million). That in September, the

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Appellant told PW2 that “the money got missing without any valid reason” and made an undertaking at EFCC Zonal Office Kano to pay back the sum of N14,840,000 to PW2 which he failed to do. He (PW3) also obtained bank statements from Zenith Bank and First Bank.

The defence of the Appellant is that the Complainant and he are friends and business partners and that they live in the same house. They are both into foreign exchange business. The Nominal Complainant invested some money into his business. Unfortunately, he suffered a loss in view of the fluctuation of the dollar, consequent upon which he entered into a written agreement with the nominal complainant on the manner of repayment. In furtherance of this agreement an initial payment was made. Before the second payment was due, he received an invitation from the Kano office of the EFCC to report there. He was given the grace of one month to pay the sum of N1 Million. He was given an extension of 10 days, due to his inability to pay. Before the date given, the Nominal Complainant came with policemen from the CID to arrest him and he was detained for three days. He made a further payment of

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N800,000.00 to the Police.

THE 1ST ISSUE FOR DETERMINATION IS:
Whether the High Court of Katsina State had the territorial jurisdiction to have tried and convicted the Appellant for the offence of criminal breach of trust?

The Appellant’s Counsel cited cases on the importance of jurisdiction to a Court, the absence of which renders the proceedings a nullity. In support of the position of the Courts on territorial jurisdiction, he cited the cases of Roda v FRN (2015) 10 NWLR Part 1468 Page 427 and Ibori v FRN (2009) 3 NWLR Part 1128 Page 282, submitting also an additional list of authorities. He denied that the Katsina State High Court had jurisdiction to entertain the case.

The Respondent’s Counsel, citing Section 134 of the Criminal Procedure Code, submitted that it is clear that the victim of the offence was from Katsina State. It is also in evidence that the money, the subject of the alleged offence, was transferred from the account of the victim domiciled in Funtua, Katsina State. He referred to the statements of accounts and the evidence of PW1 on the venue of the transactions. The lower Court, he submitted, was thus not in

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error to have held that it had jurisdiction.
Sections 134-137 of the Criminal Procedure Code of Northern Nigeria provide as follow:
Section 134
“Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction:
a. The offence was wholly or in part committed, or some act forming part of the offence was done; or
b. Some consequence of the offence has ensued; or
c. Some offence was committed by reference to which the offence is defined; or
d. Some person against whom, or property in respect of which, the offence was committed is found, having been transported either by the offender or by some person knowing of the offence.
Section 135
When it is uncertain in which of several districts an offence was wholly or in part committed, the offence may be inquired into or tried by a Court having jurisdiction over any of such districts.
Section 136
An offence committed by a person whilst he is in the course of performing a journey or voyage may be inquired into or tried by a Court through or into the local limits of whose jurisdiction he, or the person against

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whom, or the thing in respect of which, the offence was committed, (resides, is or) passed in the course of that journey or voyage.
Section 137
Whenever a question arises as to which of two or more Courts ought to inquire into or try any offence it shall be decided by the Chief Justice.

The lower Court, ruling on the issue of the territorial jurisdiction of the Court to adjudicate on the matter, held, in its judgment at Pages 82-83 of the Record:
“This Court has noted and considered the argument of counsel to the accused on the issue of jurisdiction which counsel to the prosecution did not respond to. This Court going by the charge has noted that the alleged offence was committed in Katsina within the jurisdiction of this Court. The nominal complainant who testified as PW2 said he is resident in Funtua and the issue of where the money was given or contract was entered was never before this Court. In view of the foregoing as there is no convincing argument on the part of the counsel for the accused this Court hereby discountenances the argument of counsel to the accused on the issue of jurisdiction.

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The evidence of the Nominal Complainant, I note, is silent on the venue of the transaction. He merely stated that he lives in Funtua and “looked for him (Appellant) and gave him some money to do business, I gave him the money through his two bank accounts, one in first bank and one in zenith bank…”

Under cross-examination, he agreed that while the matter was pending with EFCC Kano he reported the matter to the EFCC in Lagos. He also agreed that the Appellant is his friend and that he (Complainant) stays at the Appellant’s home in Lagos.

PW3 Nabil Ahmad Tahir, the investigator from EFCC Kano gave evidence of his investigations, including as aforesaid, the invitation of the Appellant, and collection of the Appellant’s Bank Statements.

Under cross examination PW3 said:
“I will not be surprised if you say none of the transactions took place in Katsina.”

In confirmation of the evidence of the Nominal Complainant, the Appellant stated that both he and the Nominal Complainant (PW2) live together in his (Appellant’s) house in Lagos and had been doing business together. They also share the same office. In 2014, he said, PW2

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sought to invest in his business. Following his acceptance, PW2 made payments into his account at First Bank Nigeria PLC and Zenith Bank PLC to the tune of N13 Million. He (Appellant) would “render returns of profit made” and they would share it. When the business ran into trouble because of the constant rise of the dollar, causing them to incur losses, he called PW2 and another of the investors in Funtua to arrange to meet in the North, since it was the eve of sallah, in order to acquaint him with what was happening. They subsequently met in Funtua where a written agreement was made between him and PW2 on the manner of repayment. It was agreed that the first payment would be N500,000.00, which he paid. Before the 2nd payment, he got a letter from EFCC Kano office where he was directed to raise N1,000,000.00 within a month. Due to his inability to do so, he was arrested by Police from the Force CID, despite his remonstrations that the case was already with the EFCC.

From the facts above, it is clear that the Nominal Complainant was merely forum shopping. Not only did he lodge a report with EFCC Kano, he lodged one with EFCC Lagos from where

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the officials of EFCC Kano charged him to the Katsina State High Court. It is however apparent that the transaction took place in Lagos, where the office of the Appellant was and where they both lived and shared an office. The question thus is why the case was not instituted in Lagos but in Katsina, where it is clear the Nominal Complainant came from?
The Courts frown vehemently against forum shopping. In the case of Mailantarki v Tongo (2018) 6 NWLR Part 614 Page 69 at 87 Para C-G, the Supreme Court, per Eko JSC had this to say:
“The law is now quite settled that the competence of a Court to entertain a given subject matter of dispute is an essential element in determining its jurisdiction. This Court, in MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR (pt.4) 587, lists indices of when a Courts is competent to exercise jurisdiction. One of them is when the subject matter of the case is within its jurisdiction and there is no feature in the case that prevents the Court from exercising its jurisdiction. In the instant case, the FCT High Court does not possess extra territorial jurisdiction that would make it assume jurisdiction over

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matters or causes arising far beyond its territory, or which arose in the territory of another Court of co-ordinate jurisdiction.
The decision to file this suit in the FCT High Court far away from Gombe State where the cause of action arose cannot be anything but a sheer decision to abuse the judicial process. It was a decision to actuate forum shopping. It is a specie of abuse of judicial process. Forum shopping denotes a rather reprehensible practice of choosing the most favourable territorial jurisdiction or Court in which a matter or cause may be entertained and adjudicated upon. A typical example of forum shopping according to Black’s Law Dictionary, is where the plaintiff institutes a suit in the jurisdiction with a reputation for awarding high damages, disdain for political gimmicks or filing several similar suits and keeping the one with the preferred Judge. See also IDEMUDIA v. IGBINEDION UNIVERSITY, OKADA & ORS. (2015) LPELR – 24514 (CA). The instant Appellant, as the plaintiff, had artfully avoided the High Court of Gombe State, in preference to the FCT High Court, because the former as it appears may be a forum inconvenience. I say no

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more. The dictum of Ogundare, JSC, which l had earlier reproduced should be sufficient to put their Lordships of the FCT High Court on the watch out or guard so that their Courts will not be turned into axis of forum shopping.” Underlining Mine
The proceedings in the Federal High Court were thus held by the Supreme Court in that case to be incompetent and correctly struck out.
The Apex Court in Roda v FRN (2015) 10 NWLR Part 1468 Page 427 at page 481 Para E – G, Per Peter-Odili JSC, affirmed the decision of Oredola JCA where he held:
“Jurisprudentially, criminal jurisdiction is territorial. Thus, jurisdiction in criminal matters in Nigeria is principally and mainly territorial. It depends to a large extent on where the alleged offence, at least the initial element, part or essential ingredients of the offence took place. Thus it stands to reason that if civil matters recognize territorial jurisdiction limitations, a fortiori criminal matters, which by their very nature are inhibitive, restrictive and impinge on the liberty and freedom of an accused person.”
It is thus clear that a Court in one state of the Federation

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does not have jurisdiction to hear and determine a matter within the jurisdiction of another state. No Court, I hold, possesses extra territorial jurisdiction. See Rivers State Government v Special Konsult (Swedish Group) (2005) 7 NWLR Part 923 Page 145 at 171 Para F, Per Tobi JSC.
See also Dalhatu v Turaki (2003) 15 NWLR Part 843 Page 310 at 342-343 Para H-E, Per Ejiwunmi JSC.
In the instant case, the High Court of Katsina State clearly had no jurisdiction to entertain this case. The lower Court seemed to have been persuaded to hold this position because the investigator, PW3, claimed that the account of the Complainant was domiciled in Katsina. This fact is however incapable of clothing the Katsina State High Court with jurisdiction to entertain the suit. Banking is now global. A person in the United Kingdom or such like, can transfer funds from his bank to a client in Lagos, without clothing a Court in the United Kingdom with jurisdiction to adjudicate on the matter. Unless and until the transaction or some part of it was done in the United Kingdom or in this country, it is the place where the transaction took place that is the venue for the

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purposes of trial, I hold.
It has not been suggested that the Appellant went to collect the physical cash in Katsina. The lower Court was accordingly in error to have dismissed the argument of the Appellant on the lower Court’s lack of jurisdiction. I accordingly resolve the 1st issue for determination in favour of the Appellant.

In the event that I am wrong in so holding, I shall proceed to a determination of the case on the merits.

THE 2ND ISSUE FOR DETERMINATION IS:
Whether from the available evidence before the Court, the prosecution proved its case beyond reasonable doubt.

The Appellant’s Counsel, citing Section 311 of the Penal Code and authorities on the burden of proof and the manner of proof of crimes in criminal cases, submitted that there was no direct evidence of the crime, no confessional statement, neither was there any credible circumstantial evidence. While agreeing that a certain amount of money was entrusted to the Appellant, he submitted that the other elements constituting the offence of criminal breach of trust were not made out. Pointing to the evidence before the Court, he contended that the

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prosecution witnesses, neither in evidence in chief nor under cross-examination gave evidence of misappropriation of the said money or its conversion, neither was it contended that the Appellant acted dishonestly.

The Respondent’s Counsel submitted however that it is within the purview of the trial Court to analyze and evaluate the evidence adduced by the witnesses which competence the appellate Courts do not have, except where the trial Court fails to properly evaluate the evidence. He cited Nguma v A.G Imo State (2014) 7 NWLR Page 119 (sic). He argued that proof beyond reasonable doubt did not mean proof beyond all shadow of doubt, citing Aliu v State (2015) 2 NWLR Part 1442 Page 51 and Jua v State (2010) 4 NWLR Part 1184 Page 217.

In the instant case, the evidence of the complainant is that:
“I looked for him and gave him some money to do business. I gave him the money through his two bank accounts…… I first gave him N5Million on 27/5/14…then N900,000 on 30/5/14 in the same account. Then N1.990,000 in First Bank …then N2,210,000 Million on 5/6/14. Then N1,300,000 … He promised to give me profit

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from all what was released from Monday to Friday. He continued giving me then everything stopped. I gave him N13 Million, from there the amount came to N14,680,000.00, when he stopped giving me profit I asked him to return my money. From there he started dodging me and did not tell me why he refused to pay me. That is why I reported the matter to the Court, before then he told me he repaid debt with the money. From there I lodged my complaint to EFCC. I gave EFCC the deposit slip (transfer form) which I transferred the money to him.”
Under cross-examination, he said:
“Yes I gave the accused N13 Million and I told this Court that I started getting profit from the money. Yes it is true that in every business there is profit and there is loss. Yes I accept loss if there is a good reason. There is no guarantee that he intended to pay me back my money in spite of the loss. Yes we entered into a gentleman’s agreement. Yes he transferred N500,000.00 to my account in view of the agreement. Yes while the matter was pending with EFCC Kano, I reported the matter to Lagos. Yes he deposited additional N800,000.00. There is trust between us, we

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have no relation with him. Yes he is my friend. Yes I stay at his home in Lagos. Yes I only gave the accused money and not property.”

PW1, Agbo Bala Usman from EFCC, Kano Zonal Office who had given evidence of the receipt of the petition by them, their invitation of the Complainant and of letters written to Zenith and First Bank to confirm the transaction, and also their invitation of the Appellant and recording of his statement, responded under cross examination to a question put to him:
“I am not aware that the accused gave the complainant any profit…I did not find out the two parties have entered into a gentleman’s agreement.”
PW3, Nabil Ahmad Tahir, the Investigator testified under cross examination:
“Yes I am aware of the deposit of N500,000.00 made by the accused to the nominal complainant. I am not aware that the nominal complainant has taken the accused to FCCID and recovered N800,000.00. was collected by FCCID and given to the nominal complainant (sic). The N13,000,000.00 was transferred to the accused…. No we did not investigate the lifestyle of the accused before and after the investigation….”

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In his statement made to the EFCC, explaining the transaction between them and the reason for the loss, the Appellant stated:
“…The initial money that was paid into my First Bank PLC and Zenith Bank PLC account was the total of Thirteen Million Naira (N13,000,000) only and was meant to transact foreign exchange business between Salisu Tambaya and me. We agreed to share the proceeds of the business between the both of us based on what we agreed (one) on (sic). That was how the money became Fourteen Million Six Hundred and Eighty Thousand Naira only despite all the withdrawal Salisu Tambaya made from the proceeds of the business. It was by September 2014 that I turn into sudden disappearance of money (from my disposal which happened just like a dream and all effort to find how it happens remained elusive (sic). This money includes Salisu Tambaya’s money and other people’s money including mine…”

In his evidence in Court, the Appellant testified that he and PW2 (the Nominal Complainant) were business partners and friends, living together in his house in Lagos and that PW2, invested the

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sum of N2. 5 Million in his bureau de change in 2007. He (PW2) however withdrew this investment in 2008. With the connection of PW2 with the Manager Fidelity Bank, they again went into the business of foreign exchange where they both contributed N30,000.00 each (sic), whereupon he (PW2) was made a signatory to the account. This business ended successfully in 2008. Subsequently, PW2 expressed his intention to again invest in the business and he commenced making payments into the Appellant’s accounts at First Bank PLC and Zenith Bank Nigeria PLC of up to N13 Million. At the end of every week he rendered the return on profits and it would be shared between them. More money would be added to the capital and he (PW2) would collect it in cash.

As aforesaid the Appellant complained of the astronomical rise of the exchange rate of the dollar, causing them to incur a lot of losses, together with other investors in his business. He called PW2 for a meeting on how he would pay the money back and a written agreement made. He made the first installment of N500,000.00 as agreed. Before he could make the 2nd payment, he was invited by the EFCC Kano, where he was

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given the grace of one month to raise the sum of N1Million. Before he could effect payment, he was arrested by the Force CID Lagos where he was detained for three days and he had to make a further payment of N800,000.00.

The lower Court in finding dishonest misappropriation held as follows, at Page 83 of the Record:
“On this, I hold the view that the act of dishonest misappropriation of the funds meant for the business of bureau de change is replete all over the record of proceeding of this case where the nominal complainant explained how the business transaction started and how the accused stopped giving profit to him and how he could not give satisfactory explanation. The nominal complainant in his testimony as PW2 stated that he gave him money from N13 Million Naira up to N14.680,000 through his Banks First Bank of Nigeria and Zenith Bank. The accused promised to be giving the nominal complainant profit from what was realized from Monday to Friday of the week. He started giving him then everything stopped. That was when he asked him to return his money. However he started dodging him and did not tell him why he refused to give him his money,

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that was why he took the matter to Court and before then he told him he repaid debt with the money. From there he lodged his complaint with the EFCC where he gave him deposit slip (transfer from which he transferred the money to him).
The Court further held:
“…the act of not returning the nominal complainants money when the business was bad indicates that there was dishonest misappropriation of the funds….there was no positive evidence before this Court as to the investment or when the business commenced and no records whatsoever of the purported transaction was presided by the accused (sic) and this is fatal to his case..”

Concluding, the trial judge held that the prosecution had proved its case beyond reasonable doubt as the Appellant:
“….could not account for the loss of the money entrusted to him for the business of bureau de change. The accused misappropriated the funds meant for the business of bureau de change by converting to his own use in violation to the agreement he entered with the nominal complainant to be giving him profit of the proceeds from Monday to Friday.”

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Now, to establish the offence of criminal breach of trust, Sections 311 and 312 of the Penal Code provide as follows:
Section 311
Whoever cheats and thereby fraudulently or dishonestly induces the person deceived to deliver any property to himself or any person or to make, alter or destroy the whole or any part of a document of title or anything which is signed or sealed and which is capable of being converted, shall be punished with imprisonment for a term of not less than Seven Years and shall be liable to fine of not less than One Hundred Thousand Naira.”
“Section 312
Whoever, with intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or to any person causes the destruction of any property or any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously commits mischief.”
To establish this offence, the prosecution is thus expected to prove the following:
1) That the Appellant was entrusted with property or dominion over it
2) That he misappropriated it, converted it to his own use or disposed of it;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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3) That he did so in a manner contrary to the directive given to him;
4) That he did so dishonestly.
See Uzoagba v C.O.P. (2014) 5 NWLR Part 1401 Page 441 at 456 Para F – H, Per M.D. Muhammad JSC and Oliver Aminu Zakariya v FRN (2018) LPELR – 43999(CA) Per Abiriyi JCA.

In the instant case, the first ingredient is undoubtedly proved by the Appellant’s own admission that the total sum of N13Million was transferred to him by the Respondent. It is the 2nd requirement of misappropriation and conversion that are not as straightforward.

What is clear from the facts however, is that both parties were in a profit sharing business and that the Complainant’s investment in the business was N13 Million. By the Complainant’s admission, the Appellant had been “paying profit” on this investment over the years, until he stopped. It was when he stopped that he demanded a refund of his money.

What the profit is, or what is left to be paid out of the investment has not been shown by either the Nominal Complainant or the prosecution.

It is also clear from the evidence, that the total sum of N1,300,000.00

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had been obtained from him by the EFCC and the police.

The prosecution who tendered the Appellant’s Statement of Account, drew no allusions there-from that the Appellant had frittered away the Appellant’s moneys.

When PW1, the operative from EFCC was questioned on any change of lifestyle of the Appellant, he responded:
“No, we did not discover any property which can be said to be the proceeds of the alleged offence. We did not find in any manner that the accused person used the nominal complainant’s money for his personal use.”

In the absence of misappropriation of money or fraudulent conversion, it cannot be said that there was any criminal breach of trust proved, I hold.

Contrary to the decision of the lower Court, the fact that the Appellant failed to refund the Complainant’s investment is not, without more, proof of the commission of the offence. The element of dishonesty must be present, which is sadly lacking in this case.

In a criminal trial, the burden of proof lies, throughout, upon the prosecution to establish the guilt of the accused person beyond reasonable doubt and it never shifts.

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Even where the accused person in his statement to the police admits committing the offence, the prosecution is not relieved of the burden, this is so a wrong person will not be convicted for an offence he never committed. See Igabele vs. State (2006) 6 NWLR (Pt. 975) 100; People of Lagos State vs. Umaru (2014) 3 SCNJ 114 at 137; Oliver Aminu Zakariya v FRN (2018) LPELR-43999(CA) per Abiriyi JCA.

It can thus not be held that the Appellant was rightly convicted of the offence of criminal breach of trust. Placing the burden on the Appellant to disprove the allegation against him, as the lower Court did, was a misplacement of the burden of proof, I hold.

Indeed, the unchallenged evidence before the Court is that the parties had reached an agreement as to how the money was to be paid and that repayment had commenced before the Complainant dragged him to EFCC Kano and from there to EFCC Lagos, before his arraignment in Katsina. As is evident from the evidence of the EFCC operatives, the divisions were working at cross purposes as they were not even aware of payments made to the other division before taking up the complaint of the Complainant.

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There is a word of caution to the Economic and Financial Crimes Commission, it is not every case where money is owed that the organization should make the subject of a criminal complaint and be used as a debt collector. This is demeaning of the organization and defeats the object for which the body was established. Dragging a person from Kano to Lagos and to Katsina for collection of money owing under a purely commercial transaction is an errant abuse of power and show of unnecessary force.

I hold, from the foregoing, that the Respondent failed to prove the offence against the Appellant beyond reasonable doubt and again resolve the 2nd issue for determination in favour of the Appellant.

In conclusion, this appeal succeeds. Not only has the offence against the Appellant not been proved beyond reasonable doubt, the lower Court, I hold, had no jurisdiction to entertain this suit. The conviction and sentence of the Appellant by the lower Court are accordingly set aside.

HUSSEIN MUKHTAR, J.C.A.: My Lords, I adopt, with respect, the reasons given in the judgment just read by my learned brother Oludotun Adebola Adefope-Okojie JCA, the draft of which I had a

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preview. I allow the appeal and subscribe to the consequential orders made in the judgment.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment by my Lord Oludotun Adebola Adefope-Okojie JCA, and I agree.

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Appearances:

D. Dangana Esq., with him, Sadiq El-Yakub Ibrahim Esq. and Alhassan Damola Esq. For Appellant(s)

Nasiru Salele, Asst. Chief Legal Officer, EFCC For Respondent(s)