USMAN MOHAMMED MAFA v. THE STATE
(2012)LCN/5524(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2012
CA/J/220C/2004
RATIO
EVIDENCE: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH FINDINGS OF A TRIAL COURT
In the case of OKOROJI V. THE STATE (2002) 5 NWLR (PT.759) Pg 29 @ 33 the Court held thus:
“In the absence of compelling evidence indicating erroneous appraisal of facts and erroneous conclusion, an appellate Court must show utmost restraint and reject any temptation to interfere with well considered findings by a trial Court after hearing the evidence of relevant witness.”See also EHIBOGWU v. STATE (2001) 4 NWLR (PT.703) 267. PER PHILOMENA MBUA EKPE. J.C.A.
EVIDENCE: WHETHER CONVICTION CAN BE BASED ON CIRCUMSTANTIAL EVIDENCE
It is however not the law that conviction cannot be based on circumstantial evidence. Circumstantial evidence provides the sustainable basis of conviction where it is cogent and unequivocal. See MAIGARI v. STATE (2010) 16 NWLR 439 @ 449 PARA 12. See also NWAEZE V. STATE (1996) 2 NWLR (PT.428). PER PHILOMENA MBUA EKPE. J.C.A.
COURT: DUTY OF A COURT TO CONSIDER AND EXAMINE ALL POSSIBLE DEFENCES
It is however trite law that in a criminal trial, a Court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See UWANI V. STATE (1988) 1 NWLR (Pt.70) 274. PER PHILOMENA MBUA EKPE. J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPA Justice of The Court of Appeal of Nigeria
Between
USMAN MOHAMMED MAFA Appellant(s)
AND
THE STATE Respondent(s)
PHILOMENA MBUA EKPE. J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Borno State High Court delivered by A. G. Mshelia on the 13th day of December, 2002.
The appellant was arraigned before High Court No, 3 Maiduguri on a two count charge of criminal breach of trust punishable under section 315 and theft under section 288 of the Penal Code (as amended) respectively.
The prosecution as well as defence called witnesses and tendered documents in proof of their respective cases.
The appellant was discharged and acquitted for the offence of theft under section 288 of the penal code but was however convicted for criminal breach of trust contrary to section 311 and punishable under section 312 of the Penal Code.
The appellant’s conviction was to a five-year term of imprisonment or an alternative fine of N500,000.00 (Five hundred thousand naira). In addition the appellant was ordered to pay compensation of the sum N2,725,000.00 (Two million seven hundred and twenty five thousand naira) to be shared to Customers of Al-Hayah Community Bank Ltd. (distressed and liquidated). The appellant not satisfied with the decision of the trial court appealed to this court upon six grounds of appeal.
ISSUES FOR DETERMINATION
1. Whether the trial judge was right in convicting the appellant for the offence of criminal breach of trust when the essential elements for the offence have not been established.
2. Whether the trial judge was right in sentencing the appellant to a fine of N500,000.00 (Five hundred thousand naira) or five years imprisonment.
3. Whether the trial judge was right in ordering the sum of N2,725,000,00 (Two million seven hundred and twenty five thousand naira) as compensation to be distributed to customers of Al-Hayah Community Bank Ltd when there is no evidence that the said sum (which in any case was recovered) belonged to customers of the said Al-Hayah Community Bank Ltd.
4. Whether the trial court properly assessed and evaluated the evidence of the appellant.
ON ISSUE NO.1
Whether the trial Judge was right in convicting the Appellant for the offence of criminal breach of trust when the essential elements for the offence were not established, learned Appellant’s Counsel submitted that the learned trial Judge erred when she held that the evidence of PW1, PW2 and Exhibit H as well as the evidence of Mai Abdullahi all point to the fact that the Appellant converted the money to his own use when there was no such evidence to support the finding. That contrary to the finding of the trial Judge, Exhibits B and H in particular point to how the said sum of N2,725,000.00 (Two million seven hundred and twenty five thousand naira) only was removed and for what purpose. Counsel further submitted that the evidence of the defence shows how and where the missing money was traced to. That this piece of evidence has not been challenged nor has it been controverted. He then referred to the evidence of DW1 page 37 lines 1 – 5 and DW2 page 42 lines 1- 24.
Counsel again submitted that the gist of the offence of criminal breach of trust does not lie in the actual loss, but in the intention to cause that loss. That a dishonest intention is an essential ingredient of criminal breach of trust under Section 312 of the Penal Code. See OKONKWO V. C.O.P. (1985) HCNLR Pg. 1277. That conversion only becomes fraudulent when there is intent to permanently deprive the owner of a thing, the use of it. He cited the case of OKOROJI V. THE STATE (2002) 5 NWLR (PT.759) 21 @ 49 PARAS G – H.
Learned Counsel further stated that from the evidence adduced by the prosecution as well as the defence, there is nothing on record to show that the Appellant intended to cause wrongful gain to himself or wrongful loss to Al-Hayah community Bank Limited. That every breach of trust gives rise to a suit for damages, but that it is only when there is evidence of a mental act of fraudulent misappropriation that the commission of embezzlement of any sum of money becomes a penal offence punishable as criminal breach of trust, He cited the authority in Ratanlal on the Laws of Crime page 153 cited by Hurley C.J. in Okonkwo v. C.O.P. (supra). In a further submission by learned Counsel for the Appellant he stated that the trial Judges finding of guilt which was based on the inference that the Appellant gave out loan of more than N5,000.00 (Five thousand naira) contrary to instructions of the Board thereby caused wrongful gain to himself, and wrongful loss to customers cannot and did not constitute evidence even circumstantial to warrant the Appellant’s conviction for criminal breach of trust. See page 69 lines 15 – 22 of the record.
Counsel again submitted that for circumstantial evidence to warrant a conviction, a whole series of contemporaneous facts and surrounding circumstances of an event must be considered together in the circumstances of the case in order to fix the Appellant irresistibility with the commission of the offence of criminal breach of trust. See LORTIM v. THE STATE (1997) 2 NWLR (pt.49o) 711 @ 725 PARAS C – D. That there was no evidence that the Appellant was given any instructions as to the limit of amount he could give as loan since no resolution of the Board to that effect was tendered. He then concluded that even if the Appellant had given out loans of more than N500,000.00 (Five hundred thousand naira) without instructions, it is not an indication of dishonest intention for the purposes of conviction for the offence of criminal breach of trust. He then urged the Court on that issue to allow the appeal and set aside the conviction of the Appellant for criminal breach of trust.
ON ISSUE NO. 2
Whether the trial Judge was right in sentencing the Appellant to a term of 5 years or N500,000.00 (Five hundred thousand naira), learned counsel submitted that by the combined provisions of Sections 22 and 74 of the Criminal Procedure Code Law (Cap 42) and the Penal Code Law (Cap 102) respectively, (Laws of Borno State)’ a Judge cannot impose a sentence of imprisonment of more than two years where the fine exceeds N2,000.00 (Two thousand naira). He further reiterated the fact that the alternative fine of N500,000.00 (Five hundred thousand naira) was not the result of a judicial and judicious exercise of the Court’s discretion as the fine was not only excessive and therefore contrary to Section 22 of the Penal Code but punitive. He then referred to Section 72 of the Penal Code which reads thus:
“Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited but shall not exceed the jurisdiction of the Court imposing it and shall not be excessive.”
Counsel stated again that a trial Court has discretion in matters of sentence but that its discretion must be exercised judicially and judiciously. That the trial Court ignored Counsel’s plea for mitigation of sentence based on the fact that the Appellant was of good character, a civil servant, a first offender and a family man with 2 wives and 23 children, thus placing him in a position of being unable to pay the fine and leaving him with no other option than that of imprisonment.
Learned Counsel further drew the Court’s attention to the fact that the highest fixed amount of fine in the Penal Code is N2,000.00 (Two hundred naira) as per Section 132 (A) and submitted that in other instances where the amount of fine is left to the discretion of the Court, as in Section 312 of the Penal Code, the subject matter of this appeal, the Court ought to have exercised its discretion reasonably by reference to the sum of N2,000.00 being the maximum fixed fine in the Penal Code as a bench mark. He then urged the Court to set aside the sentence.
ON ISSUE NO. 3
Whether the trial Judge was right in ordering the sum of N2,725,000.00 (Two million seven hundred and twenty five thousand naira) as compensation to be distributed to customers of Al-Hayah Community Bank Limited when there is no evidence that the said sum belongs to the customers of the said Bank. That from the evidence adduced, a good part of the money involved had been recovered in cash and kind which the Court failed to take into consideration and as a result, the Appellant was twice vexed by doubly compensating the customers of the Al-Hayah Community Bank which amounted to unjust enrichment. Counsel again submitted that count ONE of the charge against the Appellant is explicit as to whose money the breach of trust was committed against. That there was no evidence that the said money belonged to the customers of the said Bank. Also, that in ordering compensation the lower Court failed to take into consideration the uncontroverted testimony of the defence to the effect that a substantial amount of the money had been recovered from the dupes, and again the management of the Al-Hayah Bank had taken possession of the Appellant’s car, a Peugeot 505 in lieu of the sum of N2,725,000.00 (Two million seven hundred and twenty five thousand naira) or a part thereof. He concluded that for the Court to order compensation in the above stated sum based only on the finding of guilt predicated on circumstantial evidence, amounted to a miscarriage of justice for which the Court is called upon to set aside.
ON ISSUE NO. 4
Whether the Trial Court properly assessed and evaluated the evidence of the Appellant, learned counsel submitted that it is the duty of a Court to properly assess and evaluate the evidence of both of prosecution and the defence. He cited the case of XTODEUS TRADING COY. V. VINCENT STANDARD CO. (1995) 8 NWLR (PT.412) PG. 244 @ 253 – 254 PARAS H – D.
That in spite of the witness called by the defence, the trial Court still found the Appellant guilty and without any reference to the evidence of the Appellant stated thus:
“From the evidence adduced, I find it proved that the accused removed the sum of two million seven hundred and twenty five naira in his capacity as Manager of the said Al-Hayah Community Bank.
Accused admitted this fact in his statement to the police dated the 12th day of September 1995 which was tendered as Exhibit H at page 68 lines 20 – 24.”
That “the relevant portion” of Exhibit H and his witness’ testimony relied upon by Court all stated in no unclear terms what exactly happened to the money. That failure of the trial Judge to consider or properly evaluate the evidence of the defence caused a substantial miscarriage of justice for which the Court is called upon to set aside the conviction and sentence. Learned Counsel concluded that the evidence before the Court was not sufficient to convict the Appellant for criminal breach of trust.
This appeal which emanated from Maiduguri, Borno State came up in this Court on the 16th day of April, 2012. All parties were absent, but since it is a 2004 appeal and there is the Appellants brief filed herein, this Court decided to hear the appeal based on the Appellant’s brief alone as the Appellant had earlier filed a motion on the 30th day of May 2006 for the Court to hear the appeal based on the Appellant’s brief alone. That motion was granted on the 12th day of December, 2006, hence this judgment. Although the Respondent has not filed any brief of argument, I shall endeavour to take the issues one after the other as adumbrated by the Appellant.
On Issue One, whether the trial Judge was right in convicting the Appellant for the offence of criminal breach of trust when the essential elements for the offence were not established: Learned Counsel for the Appellant submitted in a nut shell that the trial Judge erred when she held that the evidence of PWs 1 and 2 and Exhibit H as well as the evidence of one Mai Abdullahi all point to the fact that Appellant converted the money to his own use when there was no such evidence to support the finding. On page 52 of the record the learned trial Judge went to great lengths in reproducing the evidence of PW1 who was one of the key witnesses at the trial. She gave a full account as per the evidence of PW1 of how the customers at the AL-Hayah Community Bank were unable to withdraw any money from the said bank and also how the Appellant had been seen carting away money from the bank and stored in the boot of his car. Also that when asked he would tell both the accountant and the cashier that he intended to use the money for investment. PW1 however in his testimony at the trial Court stated that when he accosted the Appellant on the issue of his carting away virtually all the money from the said bank, his reply was that he was tempted. PW1 further stated that four other Directors of the bank had met on the 15th day of May 1995 and invited the Appellant to explain verbally how he carried away the bank’s money. He did explain and even reduced same into writing and signed every page of his statement and that the Appellant also signed an undertaking as to how he intended to pay back the money. Again in his testimony PW1 stated that the Appellant had authorized the board to sell his house and two of his vehicles to make up for the money he had purportedly carted away from the bank.
PW2, a police Corporal, John Adefolarinsho, testified to the effect that the Appellant was subsequently arrested after the complaint against him and he volunteered a statement in writing which was admitted as Exhibit H. PW2 further stated that after obtaining Exhibit H. They proceeded to the bank where they discovered two bank tellers illegally issued by the Appellant in the sum of N2,725,000.00 (Two million, seven hundred and twenty five thousand naira) Exhibits C and D.
The Appellant was charged with the offence of criminal breach of trust under Section 311 of the Penal Code defines Criminal Breach of Trust thus:
“Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of 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 so to do, commits criminal breach of trust.”
The trial Court in its decision made specific finding on the following legal parameters:
a. Whether the appellant was entrusted with the money, the subject matter of the charge,
b. Whether the Appellant in fact misappropriated or converted the money, the subject matter of the charge.
c. Whether the Appellant acted dishonestly,
The learned trial Judge first considered issue (b) and thus stated:
“From the evidence adduced, I find it proved that the accused person removed the sum of N2,725,000.00 (Two million, seven hundred and twenty five thousand naira) in his capacity as Manager of Al-Hayah Community Bank. The accused admitted this fact in his statement to the police dated 12-9-95 which was tendered as Exhibit H”‘
The trial Court also found that the money was removed without the knowledge or authority of the Board of Directors of the Bank. That from the evidence adduced the Court found as a fact that the Appellant in his capacity as Manager had control over the money deposited in the bank by customers. That Exhibit H further showed that the Appellant released the said sum of money to people who were not shown to be customers of the bank. Evidence of PW1 showed that the Appellant acted contrary to instructions given to him by the Board of Directors that he was not allowed to give out loan of more than N5,000.00 (Five thousand naira) without the consent or authority of the Board. On my part, I have not found any compelling reason why I should interfere with the findings of fact of the trial Court. In the case of OKOROJI V. THE STATE (2002) 5 NWLR (PT.759) Pg 29 @ 33 the Court held thus:
“In the absence of compelling evidence indicating erroneous appraisal of facts and erroneous conclusion, an appellate Court must show utmost restraint and reject any temptation to interfere with well considered findings by a trial Court after hearing the evidence of relevant witness.”See also EHIBOGWU v. STATE (2001) 4 NWLR (PT.703) 267.
In the light of the above, I therefore find issue one in favour of the Respondent against the Appellant.
On issue two, whether the trial Judge was right in sentencing the Appellant to a term of 5 years or N500,000.00 (Five hundred thousand naira), fine the question to be considered here is: Was the Accused/Appellant properly charged under Section 315 of the Penal Code?
Learned Counsel for the Appellant submitted that the trial Court went outside the ambit of Section 22 of the Penal Code Law and Section 74 of the Criminal Procedure Code where a Judge cannot impose a sentence of imprisonment of more than 2 years where the fine exceeds N2,000.00 (Two thousand naira). Counsel rated the said fine as primitive and excessive. Section 315 of the Penal Code reads thus:`
Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.
The learned trial Judge did not find any reason to sentence the Appellant under Section 315 of the Penal Code. I also agree that the said charge is inappropriate and also that the conviction under Section 312 of the Penal Code is adequate. The said section however reads as follows:
“whoever commits criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.”
In the case at hand, the learned trial Judge found from the evidence adduced that the Accused/Appellant committed the offence of criminal breach of trust which falls under Section 372 of the Penal Code. There was a specific allegation of crime of criminal breach of trust laid against the Appellant. The disbursement of the money entrusted to the Appellant by the bank contrary to the instructions by the Board constitutes the offence of criminal breach of trust under the said section of the Penal Code. See AGBI V. THE STATE (2005) 8 NWLR 40 @ 64. The learned trial Judge relying on the quantity of the evidence before him in her estimation concluded at page 70 of the record of appeal thus:
The charge under Section is not appropriate. The accused however can be convicted for criminal breach of trust simpliciter under Section 312 of the Penal Code.
From the above reasoning and conclusions I find issue two in favour of the Respondent against the Appellant.
Issue three is whether the trial Judge was right in ordering the sum of N2,725,000.00 (Two million, seven hundred and twenty five thousand naira) as compensation to be distributed to customers of Al-Hayah Community Bank Limited when there is no evidence that the said sum belongs to customers of the said Al-Hayah Community Bank Limited.
Learned Counsel for the Appellant submitted that the learned trial Judge ought not to have ordered this compensation considering the fact that a substantial amount of the money was recovered from the dupes and that the Management of the said Community Bank took possession of the Appellant’s vehicle, a Peugeot 505 which he considered was in lieu of the said sum of N2,725,000.00 (Two million, seven hundred and twenty five thousand naira). That even though Section 78 of the Penal Code gives a Court the power to order compensation, the exercise of this power is discretionary and may be exercised in addition to or in substitution for any other punishment, that is judicially and judiciously and in accordance with Section 365 (1) (b) of the Criminal Code Procedure Cap 42 Laws of Borno State 1994. He then concluded that the Appellant was twice vexed by doubly and unjustly compensating the customers of the Al-Hayah Community Bank.
Section 78 of the Penal Code reads thus:
“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 or in substitution for any other punishment.”
The procedure for enforcing an award of compensation under Section 78 of the Penal Code is by Sections 304 and 307 of the Criminal Procedure Code. Also where the law makes express provision as to the method of enforcing an order, it must be followed to the exclusion of any other method.
In the instant case, the learned trial Judge from the evidence adduced before her in the lower Court had found the Appellant guilty of Criminal Breach of Trust and had sentenced him accordingly. In her own words
“I am prepared to be linient. I hereby sentence the accused to a fine of N500,000.00 (Five hundred thousand naira) or serve a term of 5 years imprisonment, I will also exercise my power under Section 78 of the Penal Code and award compensation of N2,725,000.00 (Two million, seven hundred and twenty five thousand naira) to Al-hayah Community Bank to be shared among customers whose money was carried away by the accused.”
I am in total agreement with the decision of the learned trial Judge on this issue. The Al-Hayah Community Bank would normally have customers whose money had be carted away by the Appellant and proved to be so from the evidence adduced at the trial. PW1 in his evidence stated that customers could not withdraw any money from the said bank and money had to be sourced from other banks to meet the needs of some customers. Since the Al-Hayah Community Bank had not closed down, customers whose still had money in the bank had to be compensated, hence the learned Judge’s resort to Section 78 of the Penal Code. She took the bull by the horns and ordered compensation to defrauded customers of the bank. Learned Counsel for the Appellant however disagreed with this decision of the lower Court and further stated that for the Court to order compensation in the above stated sum based only on the finding of guilt predicated on circumstantial evidence amounting to a substantial miscarriage of justice for which the Court is called upon to set aside.
It is however not the law that conviction cannot be based on circumstantial evidence. Circumstantial evidence provides the sustainable basis of conviction where it is cogent and unequivocal. See MAIGARI v. STATE (2010) 16 NWLR 439 @ 449 PARA 12. See also NWAEZE V. STATE (1996) 2 NWLR (PT.428). In the instant case, the learned trial Judge found the evidence of the Appellant clear and unequivocal and had no reason to doubt same. I agree with the decision and I throw my weight behind her reasoning as she acted according to law. Issue number 3 is therefore resolved against the Appellant.
Issue Number 4 is whether the trial Court properly assessed and evaluated the evidence of the Appellant. No doubt it is the duty of a Court to properly assess and evaluate the evidence of both the prosecution and the defence in any criminal proceedings. This issue is however tied to issue number 1 where the trial Court went to great lengths to assess and give probative value to the evidence adduced by all the witnesses. I do not need to go into any lengthy discourse on that issue as it has been properly dealt with in my discussion on issue one. I fail to agree with the submission of Appellant’s Counsel that there is no evidence in Exhibit H which support the fact that the Appellant converted the money to his own use. On the contrary there was ample evidence in Exhibit H which support the fact that the Appellant carted away the money and also acknowledged the fact that he was “tempted”. I agree with the learned trial Judge that the prosecution had proved its case of criminal breach of trust beyond reasonable doubt.
It is however trite law that in a criminal trial, a Court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See UWANI V. STATE (1988) 1 NWLR (Pt.70) 274. I have not seen any material contradiction in the evidence of the prosecution witnesses to warrant my allowing this appeal. Even if there are any minor discrepancies, they go to no issue. These are questions of fact to be determined by the trial Court and placed in proper perspective while considering and evaluating the credibility of witnesses during trial. See IGBI v. THE STATE (2000) FWLR (PT.3) 358 @ 369.
“It is not every trifling of the prosecution witnesses that could be fatal to its case. It is only when such inconsistence or contradictions are substantial and fundamental to the main issue in question before the Court that thus create doubt in the mind of the trial Court that an accused is entitled to benefit therefrom.”
My answer to this issue is therefore that the trial Court acted properly by her assessment and evaluation of the evidence before her. It is hereby resolved in favour of the Respondent. I therefore find no merit in this appeal and I dismiss it for the reasons given above. The conviction and sentence of the Appellant are hereby affirmed.
CLARA BATA OGUNBIYI, J.C.A.: The judgment by my brother Philomena Mbua Ekpe (JCA) in confirming the conviction and sentence of the appellant is well founded and hence the absence of any merit in the appeal. Some is therefore also dismissed by me in terms of the lead judgment.
JUMMAI HANNATU SANKEY, J.C.A.: I have had a preview of the lead Judgment of my learned brother, Ekpe, J.C.A. and I concur in his reasoning that the Appeal has no merit.
For these same reasons, which I hereby adopt, I also dismiss the Appeal and affirm the conviction and sentence of the Appellant.
Appearances
B. A. Bukar Esq. learned counselFor Appellant
AND
Respondent not represented and filed no brief.For Respondent
