MR. OLIVER AMINU ZAKARIYA v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/11103(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of March, 2018
CA/YL/138CN/2017
RATIO
ESTABLISHING CRIMINAL BREACH OF TRUST
To establish the offence of criminal breach of trust against the Appellant, the prosecution is expected to prove: 1) That the Appellant was a public servant. 2) That in such capacity he had been entrusted with the money in question. 3) That he committed a breach of trust in respect of the money, that is, either a) he had misappropriated it or b) converted it to his own use or c) in anyway whatsoever disposed of it fraudulently and in a manner contrary to the directive given to him. Per JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES:
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
MR. OLIVER AMINU ZAKARIYA – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment)
This appeal is against the judgment delivered on 30th March, 2017 in the High Court of Taraba State holden at Jalingo.
By an amended information filed on 7th October, 2016, the Appellant and two others were charged for conspiracy and criminal breach of trust contrary to Sections 97, 311 and 315 of the Penal Code.
The other accused persons were discharged and acquitted. The Appellant who was the 3rd Accused before the Court below did not escape. He was convicted on count 7 of the information for criminal breach of trust and sentenced to a prison term of one year.
The facts of the case are very simple and short. The Appellant was Caretaker Committee Chairman of the Nigerian Civil Service Union Taraba State Chapter. He was alleged to have diverted two million, three hundred and sixty thousand, eight hundred and thirty one Naira, seventy two kobo (N2,360,831.72) meant for the partial repayment of N1,462,618,000.00 (one billion, four hundred and sixty two million, six hundred and eighteen naira) loan which the Union took from First Bank Plc.
In his defence, the Appellant denied the charge against him.
According to him, there was a National Delegates Conference in Enugu. As Caretaker Chairman of the Union, the Union permitted him to use the money they got from the Accountant General to facilitate their attendance at the Conference in Enugu. He denied that the money used was a First Bank money. He said that the cheque was addressed to the Secretary State Civil Service Union. This was the cheque they lodged at Oceanic Bank.
After considering evidence led by the Respondent and defence of the Appellant, the Court below as stated above found the Appellant guilty, convicted him and sentenced him to a prison term of one year.
The Appellant appealed to this Court by an original notice of appeal dated and filed on 3rd April, 2017. He was granted leave by the Court on 12th October, 2017 to amend the notice of appeal. The amended notice of appeal dated 25th August, 2017, filed on 11th September, 2017 was deemed duly filed and served on 12th October, 2017. The amended notice of appeal contains four grounds of appeal.
From the four grounds of appeal, the appellant presented the following two issues for determination:
1. Whether the trial Court was right in law when it suo motu raised and resolved the issue of the validity or otherwise of the decision of the state executive council of the Nigerian Civil Service Union Taraba State, without calling on the parties to address the Court on it?
(Ground 1 of the Grounds of Appeal)
2. Whether having regard to the totality of the evidence adduced at the trial, the learned trial Judge erred in law when he convicted and sentenced the Appellant for the offence of criminal breach of trust?
(Grounds 2, 3 and 4 of the Grounds of Appeal)
The Respondent also submitted the following two issues for determination:
1. Whether the issue of the validity or otherwise of the decision of the State Executive Council to use the money misappropriated was raised by the trial Court suo motu to warrant the parties address him on the issue.
Distilled from Ground 1
2. Whether having regard to the evidence adduced by of the Prosecution witnesses especially PW9 and the exhibits tendered in this case, it can be said the prosecution has proved its case beyond reasonable doubt to warrant the conviction of the appellant.
Distilled from grounds 2, 3 and 4.
Arguing issue 1, learned counsel for the Appellant contended that the Court below raised and pronounced on whether the executive members of the Nigerian Civil Service Union Taraba State can validly authorize the use of money, subject matter of the alleged crime, in the way and manner they did. It was contended that despite the failure to invite parties to address the Court particularly the Appellant who would be affected, the Court below proceeded to make findings on that issue raised suo motu by that Court. The Appellants right to fair hearing was thereby breached; it was submitted.
The law, it was submitted, is that the Court cannot raise an issue suo motu and pronounce on same without inviting the parties to address it on it. We were referred to Ominiyi vs. Alabi (2015) LPELR- 24399 SC 23, Continental Merchant Bank Plc & Ors vs Egbuchu (2016) LPELR- 40053 PAGE 12-13 and Nwekeorie& Anor vs. Anyawu (2017) LPELR- 42071 CA page 26-28
It was submitted that any proceedings conducted without fair hearing amounts to a nullity and is bound to be set aside.
The Court was urged to set aside the decision of the Court below, discharge and acquit the Appellant.
On issue 2, it was submitted that for an accused person to be convicted for the offence charged, the prosecution must prove all the ingredients of the offence charged beyond reasonable doubt. The Court was referred to The People of Lagos State vs. Umaru (2014) Vol. 230 LRCN 1 at 30 31.
It was submitted that both Sections 311 and 315 Penal Code under which the Appellant was tried and convicted relate to two different kinds of criminal breach of trust with different degrees of punishment and slightly different ingredients.
It was submitted that for the Respondent to succeed in sustaining any conviction, it has the burden of proving the commission of the offences as provided by the two Sections under which the Appellant was tried and convicted as provided by the two Sections. It was submitted that the prosecution in any criminal trial must prove the offence as charged. We were referred to George vs. FRN (2014) Vol. 232 LRCN 157 at 178.
In the above case, it was submitted, the prosecution made the words intention to defraud an element of the offence of cheating in the charge. The Apex Court held that notwithstanding the requirement of the Section, since the prosecution made it an element of the offence in the charge, it was bound to prove it otherwise the Accused Person was entitled to an acquittal.
It was submitted that since the prosecution in this case charged the Appellant under two Sections of the Penal Code, it is bound to prove all the ingredients of the offences contained in the two Sections of the law.
It was submitted that the required ingredients the prosecution has to prove to secure a conviction for the offence of criminal breach of trust under Section 315 of the Penal Code Law have been set out by the Supreme Court in Onuoha vs. State (1988) LPELR 2706 SC page 10 11. We were also referred to the decision of this Court in Ibrahim & Ors vs. Commissioner of Police (2010) LPELR – 8984 CA page 14 15.
It was submitted that under Section 315 of the Penal Code the prosecution must prove that the Accused Person committed the offence in his capacity as a public servant not that at the time he committed the offence he was a public servant.
It was submitted that there was no direction given to the Appellant with respect to the said amount of money by anybody except the direction given by the Union to him to have the money used for the national conference.
It was contended that it was only the evidence of PW9 that attempted to link the Appellant to the alleged offence. However the PW9 said that the cheque of N2 million cashed by the Appellant was issued by the Accountant Generals Office. The money was lodged into Union Account at Oceanic Bank and not the Appellants personal account.
From the above evidence of PW9, it was submitted, there is no evidence that the Appellant diverted the said money to his personal use.
It was further submitted that there is no evidence that the money allegedly diverted by the Appellant was given to him to forward to the First Bank Plc.
The Court was referred to the evidence of PW7, the Accountant General at page 217 of the record of proceeding where he stated thus:
When deductions are made we pay the money to 1st Bank into a designated account.
Evidence from the prosecution, it was argued shows that the Accountant General had the sole responsibility of deducting and remitting the loan to First Bank and not the Appellant. There is also no evidence that the Accountant General had been sending the Appellant to make the remittances on behalf of the government. There is also no evidence that the cheque was given to the Appellant with the instruction to go and pay that money to First Bank as an agent of the Government of Taraba State. There is a possibility, it was further argued, that the Accountant General released that cheque to the Union to be used and be paid later. The possibility became greater when it was neither the government nor First Bank Plc that raised the alarm about the two million Naira.
It was submitted that the Court below erred when it presumed that the cheque was given to the Appellant to take to First Bank Plc.
There is no doubt, it was pointed out, that on the cheque it was indicated that it was meant to be for a loan repayment. However, in the absence of evidence of how it got into the hand of the Union it can only be safe to conclude that the government gave the Union the cheque for the purpose of addressing their immediate need to be paid later.
The evidence led by the Appellant completely exonerated him, it was argued, and the Court below was in error when it failed to consider dispassionately the evidence before convicting the Appellant. The Court was referred to evidence led by the Appellant in his defence. The Court was referred to some portions of the evidence of DW4 at page 260 lines 1 13 of the record of proceedings.
It is clear from the evidence of DW4, it was submitted, that the money was used in line with the authority given by the State Executive Council of the Union which was the highest decision making organ of the Union.
The Court was also referred to Exhibits DE 21 and DE 22.
The Appellant, it was submitted, gave detailed explanation of how the money was approved to be borrowed by the Union for the purpose of the conference to be repaid in due course.
It was submitted that from the evidence adduced, the Appellant had no criminal intention. If the Appellant was entrusted with any money, it was entrusted to him by and on behalf of the Union, it was further submitted. There is no evidence that the Appellant diverted or used the money, it was also submitted.
It was contended that even if it was wrong for the Executive to have approved the borrowing of the said money for the purpose of Union activities, that alone could not make the Appellant culpable as any legal action either for the tort of conversion or any criminal allegation ought to have been against the Nigerian Civil Service Union and not the Appellant.
There is no evidence, it was submitted that the Appellant was entrusted with property or with dominion over property in his capacity as a public servant or as a banker, factor, broker legal practitioner or agent. That there is also no evidence of any direction given to the Appellant which he failed to comply with in the use of the money.
On issue 1, learned counsel for the Respondent, submitted that the learned counsel for the Appellant ought to have quoted specifically from the judgment of the lower Court the issue which he alleged the Court below raised suo motu for an understanding of the complaint.
It was submitted in any case that the issue of the decision of the State Executive Council of the Union to use the money was never raised by the Court below suo motu but borne out from the oral evidence of the parties. The Court was referred to the evidence of DW4 at page 260 of the record and Exhibit PE 16 the extra judicial statement of the Appellant.
It was submitted that it was the Appellant who is complaining of his right to fair hearing that raised the issue he is complaining about. What the Appellant is complaining about, it was submitted, is a finding of the Court below based on the credibility of witnesses called by the Appellant and the Appellants evidence.
On issue 2, it was submitted that the burden of proof is on the prosecution and the standard of proof is proof beyond reasonable doubt. It was submitted that proof beyond reasonable doubt is not proof beyond all shadow of doubt. We were referred to Hassan vs. State (2017) 5 NWLR (Pt. 1557) 1 at 34 A B. and Smart vs. State (2016) 9 NWLR (Pt. 1518) 447.
It was submitted that in a charge of criminal breach of trust it is not sufficient for the prosecution to show that the accused person was entrusted with property or dominion over it, it must be established that he either dishonestly misappropriated it or converted it to his use or used it or that he disposed of it. The Court was referred to Ugbaka vs. State (1994) 8 NWLR (Pt. 364) 658 and Onuoha vs. State (1988) LPELR – 2706.
It was submitted that in a charge of criminal breach of trust, the Court must first of all make a finding on: a) Whether the accused person was entrusted with the property (or money) subject matter of the charge. b) Whether the accused person in fact misappropriated or converted the property (or money) subject matter of the charge to his own use.
The Court was referred to a finding of the Court below at page 328 of the record.
The Court was referred to the evidence of PW9 and Exhibit 18 which was meant for cash refund to First Bank.
It was argued by learned counsel for the prosecution that by picking Exhibit 18 from the office of the Accountant General of Taraba State, the Appellant was shown to have been entrusted with the said cheque and it was meant to be paid at First Bank for loan refund. However, contrary to what was contained in Exhibit P18, the Appellant dishonestly diverted the cheque to Oceanic Bank and opened or deposited the cheque into the Unions Welfare Account and withdrew the money under the guise of funding Union activities.
The DW4, it was pointed out, stated under cross examination that the cheque was meant for cash refund loan. That the Appellant himself under cross examination admitted that the cheque was for cash refund and that the minutes of the Executive Council meeting did not show where he (the Appellant) was authorized to use the loan money.
It was submitted that evidence of DW4 and DW5 corroborated the evidence of PW9.
It was submitted that when the Appellant admitted that Exhibit DE 21 (the minutes of the meeting) that approved the diversion did not contain such authority, it therefore meant that the Appellant unilaterally diverted the cheque to Oceanic Bank for the purpose of opening and withdrawing the amount contained therein contrary to the trust reposed on him. This, it was contended, was contrary to the evidence of the Appellant and his sle witness that the cheque Exhibit PE 18 was used to fund Union activities.
The Court was urged to hold that the Respondent had proved the case beyond reasonable doubt against the Appellant and the judgment of the Court below should not be set aside for the following reasons:
a) The Appellant was entrusted with a cheque of N2,360,831.72, Exhibit PE 18.
b) Exhibit PE 18 was for the purpose of paying part of the loan obtained from First Bank.
c) Contrary to what Exhibit PE 18 was meant to serve the Appellant dishonestly diverted same to Oceanic Bank and withdrew.
In a criminal trial, although it is desirable to invite learned counsel to address the Court on any issue raised by the Court suo motu denial of fair hearing cannot be successfully canvassed on the ground that learned counsel were not called upon to address the Court on the issue raised and decided by the Court. The practice of the Court has been to convict upon offences disclosed before the Court other than the offence for which the accused is charged, the charge having been read and explained to the accused. See Kareem vs. F.R.N. (2002) LPELR 1664 SC page 22 to 23 per Ejiwunmi JSC and the decision of this Court in Ika vs. State (2009) LPELR 8262 CA page 11 12 per Akaahs JCA (as then was, now JSC). In the instant case the issue which the Appellant says was raised suo motu by the Court below has not been clearly spelt out for the Respondent and the Court to enable a proper response to be made by the Respondent and for this Court to determine.
However, if it is the decision of the Executive Council of the Nigerian Civil Service Union, it cannot be correct that the Court below raised it suo motu. DW4 called by the Appellant in his evidence in chief stated that the Appellant had the authority of the Executive Council of the Civil Service Union to use the cheque collected from the Accountant General?s Office. Exhibit DE 21 minutes of Emergency State Executive (SEC) Meeting of Nigerian Civil Service Union, Taraba State Council were tendered through the DW4.
From Exhibit DE 21, the Appellant as Chairman of the Union informed the Council that the Council was financially handicapped and members could not attend the Delegates Conference. He however told the Council that there was the sum N2 million which the Council collected from the office of the Accountant General of Taraba State (PW7) as part of loan repayment and he sought the approval of SEC for the money to be borrowed by the Council. That after a brief discussion on the matter, the State Executive Council unanimously approved the proposal and it was carried.
It is the above defence of the Appellant which the Court below as it was entitled to do appraised or evaluated. It did not raise a fresh issue. Therefore, there was no basis for calling learned counsel for the parties to address the Court. The Appellants right to fair hearing was thus not breached.
Issue 1 is resolved against the Appellant.
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 admitted committing the offence, the prosecution is not relieved of the burden so that a wrong person will not be convicted for an offence he never committed. See Igabele vs. State (2006) 6 NWLR (Pt. 975) 100 and People of Lagos State vs. Umaru (2014) 3 SCNJ 114 at 137.
The Appellant was convicted for the offence of criminal breach of trust. To establish the offence of criminal breach of trust against the Appellant, the prosecution is expected to prove: 1) That the Appellant was a public servant. 2) That in such capacity he had been entrusted with the money in question. 3) That he committed a breach of trust in respect of the money, that is, either a) he had misappropriated it or b) converted it to his own use or c) in anyway whatsoever disposed of it fraudulently and in a manner contrary to the directive given to him. See Onuoha vs. State (1988) LPELR 2706 SC page 10 11 per Craig JSC.
At page 328 329 of the record of appeal, the Court below made the following finding:
In my view, it is not within the competence of the union or any of its organ SEC or SAC to authorize the diversion of monies meant for loan repayment to fund union activities whether on loan or any how most especially when the organ authorizing the diversion is supervised by the Accused person himself. It is simply ultra vires.
Nobody not even the State Executive Council or State administrative Council of the union that has the power to sanction or authorize the commission of an offence, because using or diverting cheques from monies deducted from various beneficiaries, meant specifically and strictly for loan refund to 1st Bank. To divert same to finance members attendance of delegates conference is no doubt contrary to the essence and purpose intended. It is absolutely unlawful and criminal. The purported approval to use the money by the EXCO presided by the 3rd Accused (if there was one) is therefore null and void. The minutes of meeting and payments vouchers tendered by the 3rd Accused cannot provide a valid defence.
No matter how liberally one looks at this scenario in all its ramifications, the repulsive odour of criminal breach of trust as regard by S. 311 of the Penal Code is all over the place and the 3rd Accused cannot escape from its intricate web which he unfortunately walked himself into.
I am convinced beyond doubt that the evidence against the 3rd Accused is so strong and compelling as will leave the Court with little or no option than to pronounce him guilty as charged with regard to criminal breach of trust. See Agbo vs. State (2006) 6 NWLR (Pt. 977) 545; Uwagboe vs. State (2007) (Pt. 1031) 606.
The Court below imported an administrative law principle into a criminal trial when it found that the Union cannot authorize the diversion of monies meant for loan repayment to fund Union activities even as a loan, an act which it said was simply ultra vires. The Court was merely stating that the Union did what was beyond its power, not that what it did was an offence.
From this finding of the Court below, it can be seen that the ultra vires decision to use the money as loan could not be blamed on the Appellant alone. It was a collective decision of the Union. If anybody was going to be held liable for the loan, it would not be the Appellant alone but the Union. The decision to borrow the money could not amount to a criminal breach of trust by the Appellant.
It is instructive to note that the Court below also introduced or imported into its judgment some esoteric principle unknown to our law. The notion of crime having such a repulsive odour that the Court need no longer look for evidence in proof thereof is not known to our law. Trial Courts should not shy away from evaluating the evidence before them to determine whether an offence has been proved or not by resorting to some odd concepts unknown to our law.
It is clear from the evidence led by the prosecution that it is only the evidence of PW9 which sought to implicate the Appellant when at page 234 of the record, the witness said that the Appellant withdrew the money for his personal use.
The PW9 did nothing more as an investigator to show that the Appellant withdrew the money for his personal use. Under cross examination, the PW9, the star witness for the Respondent said that he did not investigate the personal account of the Appellant. He also said that the N2 million was lodged into the Union Account at Oceanic Bank.
No witness was called to prove that appellant was entrusted with any money. The Respondent probably relied on the evidence of the Appellant that he collected the cheque from the office of the Accountant General. The Accountant General himself who testified as PW7 said nothing about the cheque. What the PW7 said was that when deductions were made they paid the money to First Bank into a designated account. He never suggested that he gave the Appellant the cheque that was deposited in Oceanic Bank to pay into the designated account and he did not.
As I pointed out earlier, in Exhibit DE 21 which was tendered through the only witness called by the Appellant DW4, the Union agreed that the money should be borrowed. Neither the DW4 nor the Appellant as DW5 was cross examined on Exhibit DE 21. It is the law that where a witness is not cross examined on a crucial and material point, the only conclusion is that the adverse party who ought to have cross examined the witness accepts the evidence of the witness as true. See Babalola &Ors vs. The State (1989) LPELR 695 SC page 21 22, per Nnaemeka Agu JSC and Ochiba vs. The State (2010) LPELR 9002 CA page 17 18 per Rhodes Vivour (JCA as he then was now JSC).
Exhibit DE 23 on which the Appellant was cross-examined dealt merely with a resolution of the Union that two Union accounts be opened at Oceanic Bank. Learned counsel for the Respondent was therefore wrong to say that the DW5 said the resolution of the Union that the money be borrowed was not in the minutes of the meeting having failed to cross examine on Exhibit DE 21 which contained the approval of the Union that the money be used to attend the Delegates Conference.
It is not correct as learned counsel for the Respondent argued that the Appellant was cross examined on Exhibit DE 21. This argument is not borne out by the record of proceedings. It is not borne out by the contents of Exhibit DE 22 either.
The explanation of the Appellant that the money was borrowed is probably true. This is why the PW7 from whose office the cheque emanated refused to say anything about it.
The Appellant tendered vouchers to show that the money was used for the union activities. See various vouchers marked Exhibit 22.
I do not think the Court below was right in holding that even if the Union borrowed the money to enable members attend a delegates conference that is criminal. Under the Penal Code Law of Taraba State, there is no specie of crime of borrowing money. I doubt if there is any such offence anywhere in Nigeria.
It is clear from the evidence of DW4, DW5 and Exhibit DE 21 that the money was borrowed by the Union to enable its members attend a delegates conference. Apart from the fact that the Appellant alone cannot be held responsible for money borrowed by the Union, it is not an offence to borrow money.
The Respondent failed to prove that the Appellant was entrusted with money. That he committed a breach of trust in respect of the money, that is, either a) that he misappropriated it, or b) converted it to his own use or c) in anyway whatsoever disposed of it fraudulently and in a manner contrary to the directive given to him.
Put in the usual legal parlance, the Respondent failed to prove the offence beyond reasonable doubt.
Issue 2 is resolved in favour of the Appellant and against the Respondent.
The appeal succeeds in part.
Issue 2 having been resolved in favour of the Appellant, the appeal is allowed. The conviction and sentence passed on the Appellant are hereby quashed. The Appellant is discharged and acquitted.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft form the leading judgment just delivered by my learned Brother, J. S. Abiriyi, JCA.
I agree with His Lordships line of reasoning and the conclusion reached that the appeal succeeds in part.
I equally allow the appeal in part and abide by all the consequential orders made in the said leading judgment.
SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in advance, the draft copy of the lead Judgment just delivered by my Lord, James Shehu Abiriyi, JCA allowing the appeal. The issues raised in this appeal have been completely resolved. I am in complete agreement with his reasoning and conclusion which I adopt as mine. I also allow this appeal. The conviction and sentence of the appellant is quashed and accordingly discharged and acquitted.
24
Appearances:
Martin Milkman Esq. For Appellant(s)
Joshua Saidi Esq. Assistant Director Legal Department EFCC For Respondent(s)
Appearances
Martin Milkman Esq. For Appellant
AND
Joshua Saidi Esq. Assistant Director Legal Department EFCC For Respondent
