OLADIMEJI MOHAMMED EDUN & ANOR v. FEDERAL REPUBLIC OF NIGERIA
(2019) LCN/4846(SC)
In The Supreme Court of Nigeria
On Thursday, the 21st day of February, 2019
SC.960/2017(CONSOLIDATED)
RATIO
POSITION OF THE LAW ON THE OFFENCE OF CRIMINAL MISAPPROPRIATION DEFINED BY SECTION 308 OF THE PENAL CODE AND CRIMINAL BREACH OF TRUST DEFINED BY SECTION 311 OF THE PENAL CODE
…the two Accused were jointly charged and convicted for criminal misappropriation contrary to Section 308 of the Penal Code and Punishable under Section 309 of the same statute. Section 308 of the statute, which defines the offences of criminal misappropriation provides: 308. Whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation. For the purpose of these two appeals the offence allegedly committed is the dishonest misappropriation of the three sums of N6,000,000.00, N7,000,000.00 and N1,000,000.00 (totaling N14,000,000,00) said to be part of the contract sum paid to 2nd Accused as consideration for its drilling and providing 43 boreholes. The contracts were awarded by the Kwara State Government or MDG. Each of the three charges specifically alleges that the two Accused “did dishonestly misappropriate the sum – which was part of the money entrusted to you by Kwara State MDG’s – CG’s for construction of boreholes-“. The key phrase in each charge is “the money entrusted to you by Kwara State MDG -“. The word “entrusted” is from the verb – entrust, which connotes a principal making somebody, the third party, responsible for doing something or taking care of somebody. See Black’s Law Dictionary 9th Ed. at page 613; Oxford Advanced Learner’s Dictionary now 8th Ed., page 490. Let me quickly ask: was the 2nd Accused paid the “contract sum,” part of which the 1st Accused paid out the three sums, as part of the consideration payable by the Kwara State MDG for the 2nd Accused’s drilling and provision of motorised boreholes, or as mere trust for the benefit of some beneficiaries In other words, was the 2nd Accused a mere trustee I think there is a world of difference between breach of contract and a breach of trust. A breach of contract, on one hand, is a violation of a contractual obligation by failing to perform one’s own promise under the contract by repudiation of the contract agreement. According to Black’s Law Dictionary 9th Ed. Page 213, a breach of contract may be by non-performance, or by repudiation, or both. Each case gives rise to a civil claim either for damages, or some other remedies including specific performance. A breach of trust, on the other hand, occurs with the trustee’s violation of either the trust terms or the trustee’s fiduciary obligations: Black’s Law Dictionary (supra). The prosecutor in his judgment did not consider it appropriate to charge the Accused for criminal breach of trust, which by Section 311 of the Penal Code is defined as: 311. Whoever, being in any manner entrusted with property or with any dominion over the property, dishonestly misappropriates or converts to his own use that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person to do so, commits criminal breach of trust. In the two offences: criminal misappropriation defined by Section 308 of the Penal Code and criminal breach of trust defined by Section 311 of the Penal Code, dishonest misappropriation or conversion of property is a common factor. Reed, C J, made it clear in SAMUEL AHMADU SABO v. COMMISSIONER OF POLICE (1973) N.N.L.R. 207, and I agree with him, that in each offence, the accused person, allegedly, dishonestly misappropriates or converts to his own use property in his possession; and that he may be convicted for criminal misappropriation if he dishonestly misappropriates or converts to his own use property in his possession even though he came into possession of that property by way of entrustment. PER EJEMBI EKO, J.S.C.
POSITION OF THE LAW ON THE BURDEN OF PROOF AND STANDARD OF PROOF IN CRIMINAL PROCEEDING
This is a criminal proceeding. Proof beyond reasonable doubt is the standard of proof. Sections 131(1), 132 and 136(1) of the Evidence Act, 2011 place the burden squarely on the party who asserts the existence of a particular fact to prove the existence of that fact in order to be entitled to judgment. PER EJEMBI EKO, J.S.C.
WHEN A STATEMENT MADE BY THE ACCUSED WILL BE REGARDED AS “CONFESSIONAL”; WHETHER A CONFESSIONAL STATEMENT ONLY PROVES THE GUILT OF THE ACCUSED AND NOT THE DEFENCE OR THE INNOCENCE OF THE ACCUSED PERSON
A statement made by the accused will not be regarded as “confessional” unless thereby the accused person admits his guilt and/or the commission of the offence he was charged with: Section 28 of the Evidence Act, 2011. A confessional statement proves the guilt, and not the defence or the innocence of the accused person. PER EJEMBI EKO, J.S.C.
WHAT THE PROSECUTION MUST SHOW OR PROVE TO SUSTAIN CONVICTION FOR CRIMINAL MISAPPROPRIATION, CONTRARY TO SECTION 308 OF THE PENAL CODE AND PUNISHABLE UNDER SECTION 309 OF THE SAME PENAL CODE
For conviction for criminal misappropriation, contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Penal Code, it was necessary to prove or show that the accused person had the necessary intention of causing wrongful gain to himself or another, or of causing wrongful loss to any other person within the context of Section 16 of the Penal Code that defines or states when a thing is said to be done dishonestly. Sections 308 and 16 of the Penal Code must be read together since the dishonest misappropriation is mens – rea of criminal misappropriation: BAKARE & ORS v. THE STATE (1986) ALL N.L.R. 364. PER EJEMBI EKO, J.S.C.
WHETHER WHERE THE PROSECUTION PUT BEFORE THE COURT TWO VERSIONS OF THE SAME INCIDENT OR TRANSACTION, THE COURT WILL PICK AND CHOOSE WHICH ACCOUNT TO BELIEVE AND WHICH TO DISBELIEVE
In PAUL AMEH v. THE STATE (1978) 6 – 7 SC 27 at 36, this Court made it clear that the prosecution would have failed to prove the guilt of the accused person beyond reasonable doubt if they put before the Court two versions of the same incident or transaction. I am aware that this Court in IGBI v. THE STATE (2000) 2 S.C.N.J. 63 at 73 stated also that when the statement contains both admissions and denials the prosecution is entitled to use the admissions as well. In the IGBI case the accused denied that he participated in the killing of the deceased. He however, admitted that he was present at the scene of crime. The admission had thus corroborated the evidence of the prosecution witnesses that fixed the accused to the scene of crime. In the instant case Exhibits 11 – 14 contain outright denials of the suggestion that the Accused dishonestly misappropriated the sums of money the subject of the three charges. They do not admit the criminal misappropriation charged. They are at variance with the whole trend of the prosecution’s case. The contradiction is therefore material and it casts reasonable doubt on the prosecution’s case, which doubt the two Courts below ought to have resolved in favour of the Accused/Appellants: ONUBOGU V. THE STATE (1974) NSCC 358. The two Courts below failed to heed the injunction that when there are material contradictions in the prosecution’s case the Court cannot pick and choose which account to believe and which account to disbelieve. BOY MUKA v. THE STATE (1976) 10 SC 305. PER EJEMBI EKO, J.S.C.
JUSTICES
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
OLADIMEJI MOHAMMED EDUN
-SC.960/2017
AND
ZARAB VENTURES LIMITED
-SC.961/2017 Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA
-SC.960/2017
-SC.961/2017 Respondent(s)
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): These two appeals – SC.960/2017: OLADIMEJI MOHAMMED EDUN v. FEDERAL REPUBLIC OF NIGERIA, and SC.961/2017: ZARAB VENTURES LIMITED v. FEDERAL REPUBLIC OF NIGERIA were argued, separately, on 28th November, 2018 before this same Panel. The two appeals, having the same substratum, emanate from the charge No. KWS/20C/2015 before the Kwara State High Court (Coram: M. AbdulGafar, J.) and the appeal No. CA/IL/C.100/2016 at the Court of Appeal, Ilorin Division. Because of the commonality of the facts and the issues in the appeal, including the Counsel on both sides in the two appeals, it becomes necessary that judgments in the two appeals be consolidated though the appeals retain their distinct and separate identities.
The Appellant in the appeal No. SC.960/2017 was the 1st Accused at the trial Court, and also the 1st Appellant at the Lower Court. He was the Chief Executive Officer and the Managing Director of Zarab Ventures Limited, the Appellant in the appeal No. SC.961/2017 and the 2nd Appellant at the Lower Court. In this judgment I shall hereinafter be referring
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to the Appellants in the appeal No. SC.960/2017 and SC.961/2017 respectively as the 1st and 2nd Accused.
The 1st and 2nd Accused were jointly tried on a three-count charge at the Kwara State High Court, Ilorin that reads:
COUNT ONE
That you Oladimeji Mohammed Edun, (being MD/CEO and sole signatory of Zarab Ventures Ltd) and Zarab Ventures Ltd on or about December, 16, 2008 in Ilorin within the Ilorin Judicial Division of the High Court of Kwara State while in such capacity did dishonestly misappropriate the sum of N6,000,000.00 (Six Million Naira) which was part of the money entrusted to you by Kwara State MDG’s – CGS for the construction of boreholes in some Local Government Area and you thereby committed an offence contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Act.
COUNT TWO
That you Oladimeji Mohammed Edun (being MD/CEO and sole signatory of Zarab Ventures Ltd) and Zarab Ventures Ltd on or about 18th May 18, 2009 in Ilorin within the Ilorin Judicial Division of the High Court of Kwara State while in such capacity did dishonestly misappropriate the sum of N1,000,000.00 (One Million
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Naira) which was part of the money entrusted to you by Kwara State MDG’s – CGS for the construction of boreholes in some Local Government Areas and you thereby committed an offence contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Act.
COUNT THREE
That you Oladimeji Mohammed Edun (being MD/CEO and sole signatory of Zarab Ventures Ltd) and Zarab Ventures Ltd on or about the May 21, 2009 in Ilorin within the llorin Judicial Division of the High Court of Kwara State while in such capacity did dishonestly misappropriate the sum of N7,000,000.00 (Seven Million Naira) which was part of the money entrusted to you by Kwara State MDG’s – CGS for the construction of boreholes in some Local Government Areas and you thereby committed an offence contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Act.
A total of three (3) witnesses testified for the Prosecution. The sole defence witness was the 1st Accused.
The facts of the case, which in my view are not in dispute, are that: the 1st Accused is the Managing Director/Chief Executive Officer of the 2nd Accused (a company registered
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in Nigeria as a Limited Liability Company under the Companies and Allied Matters Act, as amended). The 1st Accused is also a politician. He was a member of the House of Representatives at the National Assembly. He was at some material time a member of the Political Party in power in Kwara State. Through the 1st Accused the 2nd Accused was awarded contracts for the drilling and provision of 43 motorised boreholes in some Local Government Areas of Kwara State. The contracts were awarded by the Kwara State MDG-CG’s at the rate of N2,013,033.75 per borehole, which translated to the total sum of N86,560,451.25. The contracts were awarded in three tranches of 40, 40 and 3 boreholes vide letters dated 27th April, 20091; 3rd July, 2009, and 30th July, 2009. At the material time the PW.3, Ademola (Demola) Banu, was the officer in charge of MDG projects. He was also the Special Assistant to the Governor of Kwara State on MDG projects. He later became the Commissioner for Finance in the same regime.
The three (3) charges relate to a total sum of N14,000,000.00 paid in three tranches of N6,000,000.00, N7,000,000.00 and N1,000,000.00 by the 1st Accused
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from the account of 2nd Accused allegedly to some officials of Kwara State Government for onward payments to some third parties. The trial Court believed the 1st Accused on his assertion that he paid the sum of N6,000,000.00 and N7,000,000.00 (a total of N13,000,000.00) to the PW.3, and N1,000,000.00 to Tunji Moronfoye, who, between 2007 – 2011, was Special Assistant to the Governor of Kwara State on Millennium Development Goals (MDG). He was later, in 2011, appointed to the Governor’s Cabinet as the Commissioner for Information and Communication. Tunji Moronfoye, like the then Governor of Kwara State (said to be Dr. Bukola Saraki), did not testify.
The PW.1 and PW.2 are both staff of the Economic and Financial Crimes Commission (EFFC). They were in the team that investigated the facts on which the 1st and 2nd Accused were charged and tried for Criminal Misappropriation. The totality of their evidence is that the 1st Accused admitted that the contracts were awarded to the 2nd Accused for the drilling and provision of 43 motorised boreholes and that some payments for the contracts had been made to the 2nd Accused, and further that on
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three occasions the Accused paid sums totaling N14,000,000.00 “to State officials” out the contract sum. The PW.1, in particular, testified that the 1st Accused –
admitted in his handwriting that he paid certain individuals the money out of the contract sum as the reason why he could not perform the contract. The contract sum include (sic) the profit margin of the accused. It is unlawful for the accused to give part of the money to public officials who awarded the contract. The accused has done such (some) substantial job on the ground.
The PW.2 recorded some of the extra-judicial statements of the 1st Accused and through him these statements, Exhibit 11, 12, 13 & 14, were tendered in evidence unopposed. The line of defence consistently maintained by the 1st Accused, in Exhibits 11 – 14 and his testimony in Court is that as –
regards – the sum of N14,000,000.00. I am alleged to have given to PW.3 and one Tunji Moronfoye; I did not misappropriate the money. The money is meant for party supporters. When the contract was given to me, PW.3 told me that the contract was for me and some party leaders in Ilorin East Local Government Area –
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On the understanding that 50% of the profit will be equipment and capacity to do it to it land – – on the understanding that 50% of the profit will be given to other people. I agree to this condition. I gave the N13,000,000.00 representing the 50% of the profit to PW.3 who was in charge. I first gave him N6,000,000.00 cash in his office. I also gave him a cheque for N7,000,000.00 through Nuhu Suleiman. I gave N1,000,000.00 balance to Moronfoye.
In Exhibit 12 the 1st Accused further stated, that the PW.3 told him that the Governor had asked that the sum requested by the PW.3 be dropped “for politicians out of the contract sum”. This line of defence is to the effect that the two Accused, particularly the 1st Accused, paid the total sum of
N14,000,000.00 forming the basis of the three charges of criminal misappropriation, to the PW.3 and Tunji Moronfoye as part of some political arrangement, at the instance of the Governor of Kwara State, designed to maintain some local politicians. In Exhibit 11 the 1st Accused maintained that they could not afford to go back to the sites to complete the jobs contracted because of those 3 payments totaling
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N14,000,000.00. The PW.3’s attempt or efforts to deny this political arrangement did not impress the trial Court as credible or truthful. The trial Court, holding or finding that the PW.3 was “not a truthful witness”, disbelieved the entirety of PW.3’s evidence.
The foregoing were the facts on which the two Accused were jointly charged and convicted for criminal misappropriation contrary to Section 308 of the Penal Code and Punishable under Section 309 of the same statute. Section 308 of the statute, which defines the offences of criminal misappropriation provides:
308. Whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation.
For the purpose of these two appeals the offence allegedly committed is the dishonest misappropriation of the three sums of N6,000,000.00, N7,000,000.00 and N1,000,000.00 (totaling N14,000,000,00) said to be part of the contract sum paid to 2nd Accused as consideration for its drilling and providing 43 boreholes. The contracts were awarded by the Kwara State Government or MDG.
Each of the three charges specifically alleges that the two
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Accused “did dishonestly misappropriate the sum – which was part of the money entrusted to you by Kwara State MDG’s – CG’s for construction of boreholes-“. The key phrase in each charge is “the money entrusted to you by Kwara State MDG -“. The word “entrusted” is from the verb – entrust, which connotes a principal making somebody, the third party, responsible for doing something or taking care of somebody. See Blacks Law Dictionary 9th Ed. at page 613; Oxford Advanced Learner’s Dictionary now 8th Ed., page 490.
Let me quickly ask: was the 2nd Accused paid the “contract sum, part of which the 1st Accused paid out the three sums, as part of the consideration payable by the Kwara State MDG for the 2nd Accused’s drilling and provision of motorised boreholes, or as mere trust for the benefit of some beneficiaries In other words, was the 2nd Accused a mere trustee I think there is a world of difference between breach of contract and a breach of trust.
A breach of contract, on one hand, is a violation of a contractual obligation by failing to perform one’s own promise under the contract by repudiation of the contract agreement.
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According to Black’s Law Dictionary 9th Ed. Page 213, a breach of contract may be by non-performance, or by repudiation, or both. Each case gives rise to a civil claim either for damages, or some other remedies including specific performance. A breach of trust, on the other hand, occurs with the trustee’s violation of either the trust terms or the trustee’s fiduciary obligations: Black’s Law Dictionary (supra).
The prosecutor in his judgment did not consider it appropriate to charge the Accused for criminal breach of trust, which by Section 311 of the Penal Code is defined as:
311. Whoever, being in any manner entrusted with property or with any dominion over the property, dishonestly misappropriates or converts to his own use that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person to do so, commits criminal breach of trust.
In the two offences: criminal misappropriation defined by Section 308 of the Penal Code and criminal breach of trust
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defined by Section 311 of the Penal Code, dishonest misappropriation or conversion of property is a common factor. Reed, C J, made it clear in SAMUEL AHMADU SABO v. COMMISSIONER OF POLICE (1973) N.N.L.R. 207, and I agree with him, that in each offence, the accused person, allegedly, dishonestly misappropriates or converts to his own use property in his possession; and that he may be convicted for criminal misappropriation if he dishonestly misappropriates or converts to his own use property in his possession even though he came into possession of that property by way of entrustment.
In the instant case, none of the three charges gave particulars of the terms the money was entrusted to the Accused. The 1st Accused, in both his viva voce evidence and Exhibits 11 14, stated that the PW.3, after the contracts were awarded came to him with the story that the Governor of Kwara State intended, and directed as well, that the sums, the subject of the three charges, be paid out of the contract sum to some unnamed local politicians, and that in compliance he withdrew the sums of N6,000,000.00 and N7,000,000.00 and paid the PW.3, and another
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N1,000,000.00 which he paid to Mr. Moronfoye. That was 1st Accused’s defence to the charge that he dishonestly misappropriated the said sums entrusted to himself and the 2nd Accused. The PW.3 who should have confirmed the alleged entrustment denied it, and was disbelieved. Thus the 1st Accused/DW.1’s account stands tall and unscathed. The question next: did the prosecution prove every averment of each charge beyond reasonable doubt, the PW.3 having been disbelieved
This is a criminal proceeding. Proof beyond reasonable doubt is the standard of proof. Sections 131(1), 132 and 136(1) of the Evidence Act, 2011 place the burden squarely on the party who asserts the existence of a particular fact to prove the existence of that fact in order to be entitled to judgment.
The trial Court dismissed, as afterthought, the evidence of the 1st Accused that the contracts awarded were “joint award of contract” whereby the monies he paid to the PW.3 and Tunji Moronfoye represented 50% of the profit. The Lower Court at page 171 of the Record affirmed that finding of fact.
This now takes me to the first issue raised by the 1st and 2nd Accused in their respective Appellant’s Brief. That is:<br< p=””
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Having regards to the totality of evidence in and the special circumstances of this case, was the Lower Court not wrong in affirming the decision of the trial High Court that Exhibits 10 14 amounted to confession to the offence charge on the basis of which the appellant could be and was convicted without due regards to the explanation of the appellant on the amount of N14m, the subject of the work done by the appellant viz-a-viz the amount received under the contract.
The trial Court and the Lower Court all treated the extra- judicial statements of the 1st Accused, particularly Exhibits 11 14, as confessional statements. Were they confessional in the strict sense The learned counsel for the Respondent in each appeal submitted that Exhibits 11 14 are confessional, and that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive, is sufficient proof of guilt. In Exhibits 11 14 the 1st Accused maintained, as his defence, that he paid the three sums totalling N14,000,000.00 to the PW.3 and Tunji Moronfoye upon his being told by the PW.3 that the
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Governor of Kwara State wanted the money paid to maintain some local politicians. Inherent in those statements is the suggestion that the monies were not dishonestly misappropriated as suggested by the charges. That is a defence.
A statement made by the accused will not be regarded as “confessional” unless thereby the accused person admits his guilt and/or the commission of the offence he was charged with: Section 28 of the Evidence Act, 2011. A confessional statement proves the guilt, and not the defence or the innocence of the accused person.
For conviction for criminal misappropriation, contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Penal Code, it was necessary to prove or show that the accused person had the necessary intention of causing wrongful gain to himself or another, or of causing wrongful loss to any other person within the con of Section 16 of the Penal Code that defines or states when a thing is said to be done dishonestly. Sections 308 and 16 of the Penal Code must be read together since the dishonest misappropriation is mens – rea of criminal misappropriation: BAKARE & ORS v. THE STATE (1986) ALL N.L.R. 364.
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I agree with the counsel for the Accused/Appellants that Exhibits 11 14, heavily relied upon by the two Courts below as “confessional statements” made by 1st Accused/DW.1, are not confessional or admissions of the offence of criminal misappropriation. Rather, they are defences offered by the 1st Accused/DW.1 that by the payments of the sum totaling N14,000,000.00 to PW.3 and Tunji Moronfoye, as directed by the Chief Executive of Kwara State, the Accused/Appellants never, at all, intended to dishonestly cause wrongful loss to the Kwara State MDG’s that awarded the contracts for the drilling and provision of 43 motorised boreholes.
Exhibits 11 14, extra-judicial statements of the 1st Accused/DW.1, offering explanations and defences to the charges of criminal misappropriation, were tendered and admitted in evidence through the PW.2. They form part of the prosecution’s case, charge of criminal misappropriation. The effect of Exhibits 11 14 on the prosecution’s case is that the prosecution had thereby offered and placed before the trial Court two versions of the same transaction – one
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inculpatory and the other (Exhibits 11 14) exculpatory. In PAUL AMEH v. THE STATE (1978) 6 7 SC 27 at 36, this Court made it clear that the prosecution would have failed to prove the guilt of the accused person beyond reasonable doubt if they put before the Court two versions of the same incident or transaction. I am aware that this Court in IGBI v. THE STATE (2000) 2 S.C.N.J. 63 at 73 stated also that when the statement contains both admissions and denials the prosecution is entitled to use the admissions as well. In the IGBI case the accused denied that he participated in the killing of the deceased. He however, admitted that he was present at the scene of crime. The admission had thus corroborated the evidence of the prosecution witnesses that fixed the accused to the scene of crime.
In the instant case Exhibits 11 14 contain outright denials of the suggestion that the Accused dishonestly misappropriated the sums of money the subject of the three charges. They do not admit the criminal misappropriation charged. They are at variance with the whole trend of the prosecution’s case. The contradiction is therefore material
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and it casts reasonable doubt on the prosecution’s case, which doubt the two Courts below ought to have resolved in favour of the Accused/Appellants: ONUBOGU V. THE STATE (1974) NSCC 358. The two Courts below failed to heed the injunction that when there are material contradictions in the prosecution’s case the Court cannot pick and choose which account to believe and which account to disbelieve. BOY MUKA v. THE STATE (1976) 10 SC 305.
For these Accused/Appellants to be guilty of dishonestly misappropriating the moneys they paid to the PW.3 and Tunji Moronfoye the prosecution must prove or establish who was the owner of the moneys misappropriated. The charges suggested that the moneys misappropriated were entrusted to the Accused/Appellants “for construction of boreholes”. However, undisputed evidence coming from PW.1 and PW.2, including Exhibits 11 14, suggest that the 2nd Accused, Zarab Ventures Ltd (whose Chief Executive Officer is the 1st Accused), was paid part of the agreed contract sum being the consideration payable to it by the Kwara State MDG for drilling and provision of motorised boreholes. This fact thus
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rebuts the prosecution’s contention the Accused/Appellants were entrusted with the said money for construction of boreholes. The indubitable fact is that the Kwara State MDG contracted the 2nd Accused, as an independent contractor with the necessary expertise, to drill and provide motorised boreholes. I do not think that the ownership of the money paid to the Accused by the Kwara State MDG as consideration for performing the job they were contracted to perform would still remain vested in the said MDG. The said money can also not be said to have been “entrusted” to them “for construction of boreholes”.
On this note let me state, generally, that while entrustment and dishonest misappropriation are the necessary ingredients of the offence of criminal breach of trust; entrustment is not necessarily an element of the offence of criminal misappropriation: BATSARI v. KANO N. A. (1966) NNLR 151.
It is not in our jurisprudence that an owner of a property can be convicted for misappropriating his own property. The Supreme Court of India, in A 1965 SC 1433 at 1436; 1965 CriLJ 431 made a clear statement of the law that an owner of a property cannot be guilty of misappropriation
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of his own property. The statement accords with common sense and logic. Accordingly I adopt it.
The point I am trying to make is that the ownership of the money paid to the 2nd Accused as consideration for the said 2nd accused to drill and provide motorised boreholes remain the property of the 2nd Accused and it was being managed by the 1st Accused. The two cannot be guilty of misappropriating their own money, at least not in the peculiar facts of this case.
In the event of the Accused/Appellants failing in their contractual obligations to the MDG’s a cause of action for civil breach of contract would have risen for which the remedy for such breach does not lie in criminal proceedings. However, as to what ownership of a property connotes I endorse the statement of Amina Augie, JCA (as she then was) in SURAJU SOMADE & ORS v. OTUNBA AYO JAIYESIMI & ORS (2006) LPELR – 11866 (CA). That is:
Ownership generally connotes the totality of or the bundle of the rights of the owner over and above every other person on a thing. It connotes a complete and total right over property. As Tobi, JSC pointed out in FAGUNWA v. ADIBI (2004) 17 NWLR (Pt. 903)
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544 at 568 “The property begins with the owner and also ends with him. Unless he transfers his ownership of the property to a third party, he remains the allodial owner”.
My Lords, I cannot see how the Accused, the allodial owners of the money paid as valuable consideration to the them by the Kwara State MDGs for the drilling and provision of motorised boreholes, could be guilty of dishonestly misappropriating their own money by paying over the sums totaling N14,000,000.00 to the PW.3 and Tunji Moronfoye for the purpose of settling some politicians. I agree with the learned counsel for the Accused/Appellants as owners of their money, out of which the N14,000,000.00 was paid out, are entitled, in their discretion, to deal with the money in any lawful or legitimate manner.
Coming, as I do, to the conclusion that the ownership of the money, out of which the Accused/Appellants paid N14,000,000.00 to the PW.3 and Tunji Moronfoye (be it upon cajolery, coercion or brazen extortion by the PW.3) vests exclusively in the Accused/Appellants, particularly the 2nd Accused/Appellant. The second issue canvassed by the
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Accused/Appellants in their respective briefs is now accordingly spent; and there is now no basis for the order for restitution in the sum of N14,000,000.00 to Kwara State MDG’s as compensation pursuant to Section 78 of the Penal Code ordered by the trial Court and affirmed by the Lower Court.
On the whole the appeal No. SC.960/2017 succeeds. The decision of the Court of Appeal, delivered on 3rd May, 2017 in the Appeal No. CA/IL/C.100/2016, affirming the conviction and sentence (including the order for restitution) imposed on the 1st Accused, is hereby set aside. The 1st Accused/Appellant in respect of each charge and/or all the charges are hereby set aside. I hereby enter an order acquitting and discharging the 1st Accused/Appeal on all the three charges aforestated.
Appeal No. SC.961/2017 succeeds. The decision of the Court of Appeal, delivered on 3rd May, 2017, in the appeal No. CA/IL/C.100/2016, affirming the convictions and sentences (including the order for restitution) imposed on the 2nd Accused/Appellant by the trial High Court, are hereby set aside. The 2nd Accused/Appellant is hereby acquitted and discharged.
The sentences (including the order of restitution) imposed on
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the 2nd Accused/Appellant in respect of each charge and/or all the charges are hereby set aside. I hereby enter an order acquitting and discharging the 2nd Accused/Appellants on all the three charges aforestated.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother Ejembi Eko JSC.
These two appeals are against the judgment of the Court of Appeal, Ilorin Division Coram: Mojeed Adekunle Owoade, Chidi Nwaoma Uwa and Boloukuromo Moses Ugo JJCA against the judgment of the High Court, Ilorin Division of Kwara State Per M. Abdul-Gafer J. delivered on 27th day of April, 2016 convicting the appellants on three Count Charge of the offence of criminal misappropriation under Section 308 of the Penal Code Law with an order for the appellants to pay in restitution the sum of Fourteen Million Naira (N14,000,000.00) pursuant to Section 28 of the Penal Code Law.
SC.960/2017:
The background facts are well set out in the leading judgment and I shall not repeat them unless the circumstances warrant the use and reference to any party thereof.
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The hearing of the appeal took place on the 28th November, 2018 at which learned counsel for the appellant, Salman Jawondo Esq. adopted the brief of argument settled by Ayinla Jawondo Salman and filed on 20/7/18 in which were identified two issues for determination which ere thus:-
1. Having regard to the totality of evidence in and special circumstances of this case, was the Court below not wrong in affirming the decision of the trial High Court that Exhibits 10-14 amounted to confession to the offence charged on the basis of which the appellant could be and was convicted without due regard to the explanations of the appellant on the amount of N14 million the subject of the charge and to the level of work done by the appellant viz-viz, the amount received under the contract. (Grounds 1, 2, 4 and 5).
2. Having regard to the facts and circumstances of this case, was the Court of Appeal not wrong in affirming the trial Court’s order for restitution of the sum of N14 Million by the appellant. (Ground 3)
Learned counsel for the respondent, Abdullahi Faruk Esq. adopted the brief of argument filed on 27/7/18 and in it raised two issues for determination, viz:-
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- Whether the Court below was right to affirm the conviction of the appellant by the trial Court for a three count charge of criminal misappropriation.
2. Whether the Court below was right to affirm the trial Court’s order to the appellant to make a restitution of the sum of N14,000,000.00 (Fourteen Million Naira).I see the two issues on either side can easily be compressed into a sole issue which I shall make use of in the determination of this appeal and it is thus:-SOLE ISSUE:-
Whether the Court below was right to affirm the conviction of the appellant by the trial Court for the three count charge of criminal misappropriation and the order of restitution of the Fourteen Million (N14,000,000.00) by the appellant.
Learned counsel for the appellant contended that to constitute the offence of criminal misappropriation under Section 308 of the Penal Code Law (PCL for short), the accused must have misappropriated or converted to his own use, a moveable property or money with the intention to causing a wrongful gain to himself or another or of causing wrongful loss to any person which ingredients of the offence
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were not established in the case at hand. That an accused person can only be validly convicted for the offence of criminal misappropriation solely on the basis of his confessional statement if and only if all the elements of the offence as contained in the two sections are inferable from the confessional statement and after the test of veracity of the confession had been carried out by the Court and it is found that the confession constitutes true admission of the commission of the offence. He cited Bakare v State (1968) 1 All NLR 364 at 370 & 371; Ononuju v State (2015) All FWLR (Pt.810) 1198 at 1228; George v FRN (2013) 12 SC (Pt.1) 1 at 29; Tafida v FRN (2013) 12 SC (Pt.1) 33 at 57; Ajimobi v INEC (2009) All FWLR (Pt.477) 91 at 105; Haruna v A. G. Federation (2012) All FWLR (Pt.632) 1617 at 1635.
Stating on, learned counsel for the appellant said the statement of DW1 which the prosecution terms confessional is not an admission to the commission of the offence of criminal misappropriation neither is it proved that he intended the money for his use or that of another. That the essential ingredients of the offence were not made out. Also that the
25
confession fell below the required test that the confession should be passed through to enable the Court adjudge it true and probable. He cited Akindele v State (supra) 1070; Ogedengbe v State (2014) All FWLR (Pt.752) 1724 at 1746-1747; Mohammed v State (2014) All FWLR (Pt.747) 663 at 686; Fabiyi v State (2015) All FWLR (Pt.797) 777 at 790; Adeyemi v State (2012) All FWLR (Pt.606) 492 at 509.
For the appellant, learned counsel submitted that a doubt exists as to whom the N14 Million Naira belongs, whether Kwara State MDGs – CGS or the appellant which doubt should be resolved in favour of the appellant. He referred to Isah v State (2008) NCC 578 at 609; Onubogu v State (1974) All NLR 5; Dickson v State (2012) All FWLR (Pt.611) 1538 at 1558-1559; Isiaka v State (2012) All FWLR (Pt.645) 381 at 394-395.
That this is one of those occasions where this Court should interfere with the concurrent findings of fact of two lower Courts as the conclusions and decision are perverse and against the trend of evidence. He relied on Ugwanyi v FRN (2012) 3 SC (Pt.11) 95 at 122-123; Cameroon Airlines v Otutuizu (2011) All FWLR (Pt.570) 1260;
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Yakubu v Jauroyel (2014) All-FWLR (Pt.734) 1 at 45; Nweze v State (2017) All FWLR (Pt.898) 40 at 74; Olley v Tunji (2013) All FWLR (Pt.687) 625 at 667.
For the appellant, it was further submitted that the provisions of Section 78 of the PCC are clear and unambiguous and will be literally interpreted and that is that for any person who is convicted of an offence under this Penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment. That for the Court to invoke Section 78 the following conditions must be present:
(i) A person must have been convicted of an offence under the Penal Code Law (PCL), and
(ii) The conviction must have by his offence injured a person or some persons.
That the conditions are not met in this instance as the conviction is not sustainable. He cited Duru v FRN (2014) All FWLR (Pt.712) 1677 at 1690; NDIC v Okem Enterprises Ltd (2004) All WELR (Pt.210) 1176, Abacha v FRN (2014) All FWLR (Pt.726) 412 at 455.
In response, learned counsel for the respondent stated that all the exhibits corroborated the testimonies of the
27
prosecution witnesses and the accused person did not object to the admission of Exhibits 11, 12, 13 and 14. That it is settled law that the extra judicial statements made by a person are admissible in evidence at the trial of the person. That a free and voluntary confession of guilt whether judicial or extra-judicial if it is direct and positive and is properly established as in this case is sufficient proof of guilt.
He cited Amala v State (2004) 1 NWLR (Pt.588) 520 at 549, Akpan v State (2000) 12 NWLR (Pt.682) 607 at 623.
For the respondent, it was submitted that the Court below was right to affirm the trial Court’s order to the appellant to make a restitution of the sum of Fourteen Million Naira as restitution is an act of compensation when a crime has been proved and there is evidence that a victim has lost property owing to the crime.
The appellant prays the Court to allow the appeal, set aside the conviction of the appellant and the order of restitution as a miscarriage of justice had occurred to the appellant on account of the decision of the Court below.
Countering that stance of the appellant, the respondent’s point of view is that the concurrent findings, conclusion
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and orders were on firm ground and the Supreme Court has no option than to uphold the earlier decisions of the two Courts below.
In a criminal trial such as before the Court, the laid down standard of proof is proof beyond reasonable doubt.
The relevant sections of the Penal Code for our discourse herein are:-
Section 308 which provides thus:-
“Whoever dishonestly misappropriates or converts to his own use any property. commits criminal misappropriation”.
Section 16 states as follows:-
“A person is said to do a thing ‘dishonestly’ who does that thing with the intention of causing a wrongful gain to himself or anther or causing wrongful loss to any other person”.
The Court of Appeal considering all before it held as follows:-
“We submit that the trial Court made the said order for restitution after the appellant had been convicted. The trial Court found that the appellant had criminally misappropriated the sum of N14,000,000.00 (Fourteen Million Naira) being property of Millennium Development Goals of Kwara State Government meant for the construction of boreholes.
The trial Court is empowered to make such an order.
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See Alhaji Ganiyu Martins v COP (2005) LPELR-11292 (CA) when the Appeal Court interpreted Section 78 of the Penal Code and Section 365 (1) (b) of the CPC.
We submit that the Court below also rightly married the facts of this case with the law when it observed thus:
“The appellants dishonestly misappropriated funds meant for the execution of the contract awarded them to sink boreholes by sharing same out to their associates. The intention clearly caused wrongful gain to those he paid the money to and caused wrongful loss to the MGD’s-CGS of Kwara State who awarded the contract since, the appellants were unable to execute the contract fully having utilized part of the founds wrongfully. I hold that the confession of the DW1 alone is enough to convict the appellants and the learned trial judge was right to have done so”.
PW1 and PW2 in oral testimony at the trial Court stated that their investigation revealed that the appellant and his company misappropriated the said sum and left the contract undone. The extra-judicial statement of the appellant in which appellant admitted giving some sums of money to Government officials from the monies received for
30
the contract and so was unable to perform the contract. Excerpts of the said confessional statement are shown hereunder, thus:
“I cannot avoid (sic) to go back to the site because of the sum of N12 Million Naira collected from the money by the present Commissioner for Finance who the Governor said they should collect it from the contractor handling the borehole (Ademola Banu) present Commissioner for Finance collect the sum of N6,000,000.00 from Dele Abubakar, and the sum of N6,000.00.00 was personal by me in his office. The sum of N1,000,000.00 was also given to Tunji Moronfoye the delay for the completion of job was due to the sum demanded by Ademola Banu and Tunji Moronfoye”.
The stand of the appellant is that the prosecution did not prove the ingredients of the offence of criminal misappropriation beyond reasonable doubt against the appellant as required by law and it behoves on this Court to disturb the concurrent findings and conclusion of the two Courts below as a miscarriage of justice had been occasioned on the appellant with the conviction, sentence and order of restitution.
On the other hand, the position of the respondent is that
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the two Courts below were right and there is no basis for the interference of this Court on the findings and conclusion reached by them.
The appellant in the case at hand is the Managing Director and alter ego of Zarab Venture Limited which was the 2nd accused person, a company registered in Nigeria under the Companies and Allied Matters Act as amended. Zarab Venture Limited acting through the appellant was awarded contracts for the provisions of a total of Forty-Three (43) motorized boreholes in some Local Government Areas of Kwara State by the State MDGs – CGS at the rate of N2,013,033.75 per borehole which translated to the total sum of N86,560,451.25k. The contracts which were awarded in three tranches of 40,40 and 3 boreholes vide letters of 27th April 2009, 3rd July 2009 and 30th July, 2009 respectively were treated as one with respect to execution by and payment to the appellant and his company. The case of criminal misappropriation against the appellant is premised on the fact that the appellant gave a total sum of N14,000,000.00, part of the contract money paid to him and his company for the execution of the contract to PW3 and
32
one Tunji Moronfoye. According to the prosecution through PW3, appellant had been paid 50% of the gross contract sum and an additional sum of N17,000,000.00.
PW1, PW2 and PW3 admitted that they could not say the level or percentage of work done by the appellant and his company was commensurate to the money received by him on behalf of the company. In short the totality of the evidence of non-performance or performance below expected level translated to criminal misappropriation in the view of the respondent.
The stance of the appellant is that he completed 35 boreholes and only 8 remained uncompleted though he claimed to have done between 70 and 75 percent completion of the uncompleted projects and this before the then Governor of Kwara State, Bukola Saraki terminated the contracts.
While the appellant admitted giving a total sum of N14,000,000.00 to PW3 and one Tunji Moronfoye, he however gave evidence to the effect that the sum was part of the 30% profit margin on the contracts sum and that the amount so given was in fulfilment of his promise to release parts of the profits for members of the party who could have been patronized with the contract just
33
like the appellant and Zarab Ventures Ltd but for the fact that the contract for motorized boreholes are given to persons/companies with equipment and capability. The 30% profit margin on the total/gross contract sum translates to N25,968,135.37. This means that the net contract sum is N60,592,315.88.
From the unchallenged evidence of the appellant (DW1) and having regard to the amount so far received by the appellant on behalf of and in the name of Zarab Ventures Ltd. under the contract viz a viz the level of work admitted to have been done by the company and the appellant and the uncompleted parts of the contract as contained in Exhibits 5 and 6, the level of works done/executed by the appellant and his company are far more in excess of the amount of N60 Million or N67 Million so far paid to and received b the appellant and his company.
Following the close of evidence, parties addressed the trial Court in line with the evidence placed before the Court. By its judgment delivered on 27th April, 2006, the trial High Court found the appellant guilty as charged and sentenced him and his company accordingly but with option of fine. The
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appellant was also ordered to pay restitution in the sum of N14,000,000.00 being the amount involved in the three count charge.
The trial judge while placing reliance on the extra judicial statements of the appellant, (Exhibits 10-14) described the explanations of the appellant on the amount of N14,000,000.00 give to PW3 and one Tunji Moronfoye as an after-though, untenable and accordingly disbelieved and discountenanced same.
In making the order for restitution, the trial Court found that the N14,000,000.00 was received from the appellant by PW3 and one Tunji Moronfoye who were the officials in charge of Kwara State MDG’s – CGS at the time material to this case. However, notwithstanding that finding by the trial Court, the trial Court still made an order of restitution against the appellant and Zarab Ventures Ltd even in the face of evidence before the Court that the level of work done by appellant and his company was/is in excess of the sum of N60 Million or N67 Million received by them.
Dissatisfied with his conviction and order of restitution, the appellant appealed to the Court of Appeal on ten (10) grounds of appeal contained in a Notice of Appeal filed on 21st July, 2016.
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I stated in extensio the relevant parts of the background leading judgment to where we are in this appeal to highlight the facts and to better position them in relation to the criminal charge on which the appellant was arraigned. In this the burden of proof on the prosecution to establish the guilt of the accused appellant is beyond reasonable doubt in keeping with Section 137 (1) of the Evidence Act, which burden never shifts and in line with the constitutional rights of the accused person to the presumption of innocence as expressly stipulated by Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
In line with the prescription of the Constitution and the Evidence Act, in discharging this bounden duty, the prosecution must prove the essential elements of the offence strictly as contained in the charge since the purpose of the charge is to give adequate notice to the defence of the case it is up against. I rely on FRN v Usman (2012) All FWLR (Pt.632) 1639 at 1650 Per Rhodes-Vivour JSC; Akindele v State (2016) All FWLR (Pt.860) 1047 at 1084;
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State v Ajayi (2016) 7 SC (Pt.111) 55 at 95; Lawal v State (2016) 6 SC (Pt.11) 121 at 152; Sowemimo v The State (2012) NWLR (Pt.1284) 372 at 400; Okashetu v State (2016) 6 SC (Pt.11) 155 at 191; Okejere v State (2017) All FWLR (Pt.866) 386 at 412-413.
Taken in con, the appellant is charged pursuant to Section 308 of the Penal Code Law which stipulates that the accused dishonestly misappropriated or converted to his own use any movable property commits criminal misappropriation. Then comes what the essential ingredients of the said offence would be and these are thus:-
(i) That the property in question is movable;
(ii) That the accused misappropriated it or converted it to his own use;
(iii) That he did so dishonestly.
It is to be noted that those three elements highlighted above must co-exist with none missing for the requirement of the law on proof to be met. In this instance is the crucial question, if those elements were or are in place to support the conviction made at the trial Court and affirmed in the appellate Court below. What I see as the focal point that persuaded the two Courts to the line of thinking they toed is
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the confessional statement of the appellant in which he admitted making certain payments from the money he had collected from the contract mobilisation and made those payments to some officials upon a promise to facilitate contract mobilisation and made those payments to some officials upon a promise to facilitate the contract.
I need to reiterate that a confessional statement to be so acclaimed and utilised solely it must be direct, positive, true and unequivocal of facts that satisfy the ingredients of the offence the accused person confessed to have committed. Also an accused person can be validly convicted for the offence of criminal misappropriation solely on the basis of his confessional statement if and only if the elements of the offence as contained in Sections 16 and 308 of the Penal Code as the appellant was, are inferable from the confessional statement and after the test of veracity of the confession had been carried out by the Court and it is found that the confession constitutes true admission of the commission of the offence. See Haruna v A. G. (2012) All FWLR (Pt.632) 1617 at 1635; Ajimobi v INEC (2009) All FWLR (Pt.477) 91 at 105.
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I must humbly state that though what the appellant had admitted to might on the face of it look confessional as it may be, it has to be such as the trial Court would find within it that the ingredients of the offence have been made out inside the confines of the offences charged. See State v Salawu (2012) All FWLR (Pt.614) 1 at 35 Per Adekeye JSC; Amadi v State (1993) 8 NWLR (Pt.314) 644; Alor v State (1997) 4 NWLR (Pt.501) 511; Akindele v State (2016) All FWLR (P1.860) 1047 at 1084.
Another way of saying the same thing is that a confessional statement must be direct and positive and admit of all the ingredients of the offence before it can be used solely or partly to convict an accused. See Abiodun v FRN (2009) All FWLR (Pt.483) 1360 at 1379; Akindele v State (supra) at 1066.
The touted confessional statements of the appellants Exhibits 10-14 which the trial Court and accepted by the Court below as sufficient to base the conviction of the appellant, it has to be pointed out even where the accused has made a confessional statement or one that has the semblance of such the Court before embarking on a conviction solely on that must test the truth or veracity of the
39
confession and in doing so the Court must seek any other evidence of circumstances which make it probable that the confession is true and the test includes the following:-
(i) Whether there was anything outside the confession to show that it is true;
(ii) Whether the statement is corroborated, no matter how slightly;
(iii) Whether the facts contained therein so far as can be tested, is true;
(iv) Whether the accused person had the opportunity of committing the offence;
(v) Whether the confession of the accused person was possible;
(vi) Whether the confession was consistent with other facts which had been ascertained and proved in the matter.
See Akindele v State (supra) 1070; Haruna v A. G. Federation (supra) at 1635; Ogedengbe v State (2014) All FWLR (Pt.752) 1724 at 1746-1747; Mohammed v State (2014) All FWLR (Pt.747) 663 at 686; Fabiyi v State (2015) All FWLR (Pt.797) 77 at 790; Adeyemi v State (2012) All FWLR (Pt.606) 492) at 509.
I agree with the submission of learned counsel for appellant that since the total contract sum consisted of both the money to be used for the execution of the contract and the
40
appellant’s profit margin, it follows that the total sum of N67 Million paid to the appellant by the Kwara State MDG’S-CGS under the contract included the corresponding portions of the appellant’s profit, it became extremely difficult if not impossible to determine that the amount of N14 Million, the subject of the three count charge in this case, was exclusively that of the Kwara State MDG’S-CGS so as to hold the appellant guilty of criminal misappropriation. In other words, there is doubt as to who as between the Kwara State MDG’S and the appellant is the owner of the N14 Million and as such the doubt ought to have been resolved in favour of the appellant. See Isah v State (2008) NCC 578 at 609, Onubogu v State (1974) All NLR 5, Dickson v State (2012) All FWLR (Pt.611) 1538 at 1558-1559, Isiaka v State (2012) All FWLR (Pt.645) 381 at 394-395, Ononuju v State (supra) at 1219.
The Court below at page 173 held that:-
“One would reason that profit margin could only be ascertained on completion of the contract, then the appellants would be free to distribute half or their full profit to their colleagues, Government officials or even donate the entire profit to charity, their
41
political party or associates. There would be no offence committed. The appellants in my considered view have no excuse to pay out funds meant for a particular purpose to their associates or anybody else. The appellants’ profit margin should be eared before distribution”
is not correct as it is trite that the profit margin/contractor’s profit is always part of the Bill of Quantities of any contract of this nature and any part payment made under such a counteract includes the part of the profits. This is buttressed by the statement of the appellant in Exhibit 11 where the appellant stated that “We were paid (Fifty Million minus taxes) Sixty Three Million”.
Clearly the Court below approached the situation from the wrong angle as in line with the position of the appellant it is a matter of practice and procedure that contract sum of every contract work includes the contractor’s profits which is a percentage of the gross contract sum and which percentage depends on the nature of the contract in question.
Furthermore, it is also the position that for every payment made to the contractor, part of the contractor’s profit is
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included in such payment. This contract for the provision of 43 motorized boreholes was/is not an exception and all the witnesses agreed on this. PW1, PW2 and PW3 all admitted that the contract sum included the appellant’s profit margin even though they do not know and or could not remember the exact percentage of the contract sum that represented the appellant’s profit margin. See the evidence of PW1 in line 20 on page 72 of the record, PW2 in line 33 on page 73 of the record and PW3 in lines 25-26 on page 76 of the record and the evidence of DW1 in lines 23-24 on page 78 of the record.
Since every payment made to the appellant under the contract include part of the profits, the evidence of the appellant to the effect that what he gave out of the payments received under the contract was part of the appellant’s profits cannot be dismissed as an afterthought simply because that aspect is not contained in Exhibits 10-14. What is more, an accused person is not expected to merely adopt the contents of his extra judicial statement and so long as what he added in his evidence in Court is not inconsistent with his extra judicial statement, the explanation cannot be
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dismissed as an afterthought simply because it is not contained in his extra judicial statement. What the Court is to consider is both the “confession” and testimony of the accused together with the totality of evidence before the Court. See Itu v State (2014) All FWLR (Pt.750) 1245 at 1288.
The holding of the Court below quoted above is perverse as it is against the trend of evidence on record. See Nobis-Elendu v INEC (2015) All FWLR (Pt.812) 1505 at 1536, Akpata v Ugo (2007) All FWLR (Pt.349) 1203 at 1211. Being a perverse holding which influenced and or determined the final conclusion of the Court below, the appellant prays the Court to set aside the perverse holding and reverse the conclusion and decision of the Court below and allow this appeal. See Odom v PDP (2015) All FWLR (Pt.773) 1962) at 1984-1985.
The testing of the veracity of Exhibits 1044 against other available evidence, Exhibits 10-14. cannot be taken as a clear, positive and unequivocal admission by the appellant of the commission of the offence of criminal misappropriation of money meant for execution of the contract. The Court below
44
was therefore in error to have affirmed the decision of the trial Court which treated Exhibits 10-14 as admission of commission of the offence charged and the conviction of the appellant solely on the basis of Exhibits 10-14 and the decision is liable to be set aside. I rely on Idowu v State (1998) 11 NWLR (Pt.574) 354 at 363.
With respect to the ingredient of dishonest intention by the appellant to cause wrongful loss to Kwara State MDG’S-CGS, it is submitted that no such intention can be inferred from Exhibits 10- 14 in this case. On proof or drawing of inference of intention in an allegation of commission of a crime, I refer to the case of Arebamen v State (1972) 4 SC 14, (1972) LPELR-542, 1 at 14-15, where it was held thus: “Intent is of course difficult to prove affirmatively without a confession from the accused and can frequently only be determined by looking at the surrounding circumstances and deciding there from whether the natural inference is that such must have been intention. A material factor must have been the action or conduct of the accused himself…”
In the case of Asuquo v State (2016) 6 SC (Pt. II) 1 at 26-27 the Supreme Court, Per Ogunbiyi JSC, said,<br< p=””
</br<
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“The law is also trite that even the devil does not know the intention of a man. Intention is subjective in nature and can only be inferred from a man’s act or conduct and thus necessitating the consideration of certain salient features depending on the nature of the offence committed”.
I posit that since the total contract sum of N86,569,54.25 included the appellant’s profits of 30% and the total sum of N67 Million received by the appellant under the contract included the appellant’s profits of 30% which translates to the sum of N20,100,000.00, the appellant could not be said to have intended to cause wrongful loss to the Kwara State MDG’S-CGS by giving the sum of N14 Million to PW3 and one Moronfoye and or any person at all. The appellant as the owner of the sum of N20,100,000.00 out of the total sum of N67 Million is entitled to deal with his profits the way he conceived of.
From the evidence on record, the appellant had done more work than the sum received from the Kwara State MDG’S-CGS, this pointed to and reinforced the fact that there was never any intention on the part of the appellant to cause
46
wrongful loss to the Kwara State MDGS-CGS and or any person and none was actually caused. The above is fortified in Exhibits 5 and 6 tendered by the respondent. From the unchallenged evidence of the appellant and Exhibits 5 and 6, it is clear that out of a total of forty-three (43) motorized boreholes involved, only eight (8) boreholes were not completed by the appellant. The gross contract sum of each boreholes are per Exhibits 2, 3 and 4 on pages 11, 12 and 13 of the record is N2,013,033.75. Thus, the gross total sum of the uncompleted eight (8) boreholes at the gross contract sum of N2,013,033.75 per borehole is N16,104,270.00.
To cut a long story short, from the evidence and the circumstances of this case, the dishonest intention, a crucial ingredient which the prosecution has the duty to prove cannot be inferred from Exhibits 10-14 as one cannot see the appellant’s intention to cause wrongful loss to the Kwara State MDG’S-CGS by giving the sum of N14 Million to PW3 and one Moronfoye and or any other person.
In fact if any loss was intended by the appellant; it is that against himself and his company as the amount he parted with was part of his legitimate earnings or
47
entitlements on the contract. Therefore, the essential elements of the offence charge have not been proved beyond reasonable doubt as they are even absent and so the concurrent findings and conclusions of the two Courts below stemming from the wrong application of the law and trend of evidence are perverse and must suffer a disturbance or interference by this Court. See Ugwuanyi v FRN (2012) 3 SC (Pt.11) 95 at 122-123; Cameroon Airlines v Otutuizu (2011) All FWLR (Pt.570) 1260; Nweze v State (2017) All FWLR (Pt.898) 40 at 74; Olley v Tunji (2013) All FWLR (Pt.687) 625 at 667.
Then comes the issue of the order for the restitution of the sum of N14 Million by the appellant which the trial Court ordered and the Lower Court affirmed. In this, the provision of Section 78 of the Penal Code Law has provided for restitution where the person convicted of an offence under the Penal Code Law may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.
Clearly for Section 78 of the PCL to apply, the person must have been convicted of an offence under the PCL
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and the convict must have by his offence injured a person or some persons. It stands to reason that by the finding of in the earlier offence under Section 308 PCL which is to the effect that the offence was not made out therefore the appellant does not qualify to be branded a convict or that by his offence had injured a person or State Government or agency.
Indeed, the provisions of Section 78 of PCL are clear and unambiguous and must be interpreted literally. See Duru v FRN (2014) All FWLR (Pt.712) 1677 at 1690; NDIC v Okem Enterprises Ltd (2004) All FWLR (131.210) 11 76;Abacha v FRN (2014) All FWLR (Pt.726) 412 at 455.
From the circumstances available and buttressed by the records, the situation on ground is that of a civil contract between the appellant and his company on the one hand with the Kwara State Government MDG’s – CGS, which transaction went bad and led to the State Governor cancelling the contract mid-stream. That does not criminalize what clearly is a business transaction between parties which became unsuccessful along the way. It is for that reason that one needs a fishing hook to properly bring in
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the essential ingredients of the offence charged and that being the case this Court cannot go along with the concurrent findings and conclusion of the two Courts below. The bottom line is that an intervention of this concurring findings and earlier positions in the overall interest of justice, must be made.
From the foregoing and the well reasoned lead judgment I allow the appeal and set aside the decision of the Court of Appeal which had affirmed the judgment, conviction, sentence and order of restitution put in place by the trial Court.
SC.961/2017:
The same conclusion as in SC.960/2017 visits this appeal as the facts, circumstances are the same and therefore the findings and conclusion in the earlier appeal also are what are available herein and no need presenting unnecessary repetition of the same things. There is no difficulty in finding the appeal as meritorious and I allow it. I abide by the consequential orders made.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Eko, JSC, obliged me with the draft of the leading judgement delivered now. I agree with His Lordship that both appeals succeed. I,
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equally, allow them. I abide by the consequential orders in the leading judgement.
AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead Judgment just delivered by my learned brother Eko, JSC, and I agree with him completely. This was a business deal gone bad, and it is unfortunate that it was allowed to be criminalized. My learned brother addressed the Issue squarely in the lead Judgment and I adopt all that he had to say. Thus, I also allow the two Appeals, and abide by the consequential Orders he made in the lead Judgment.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The consolidated appeals are meritorious and are hereby allowed by me. Judgment of the lower Court is hereby set aside.
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Appearances:
Salman Jawendo, Esq. with him, I. E. Iyang, Esq. For Appellant(s)
Faruk Abdullah, Esq. For Respondent(s)
Appearances
Salman Jawendo, Esq. with him, I. E. Iyang, Esq. For Appellant
AND
Faruk Abdullah, Esq. For Respondent
