YAUBA v. C.O.P (2022)

YAUBA v. C.O.P

(2022)LCN/16639(CA)

In the Court of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, June 30, 2022

CA/YL/155C/2021

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

MOHAMMED YAUBA APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

THE REQUIREMENT OF LAW FOR AN ORDER OR OMISSION TO BE CONSIDERED A CRIME

The law is sacrosanct that in order for an act or omission to be considered a crime, such must be prescribed by a written law, with punishment for such act or omission prescribed therein. See: George V. FRN 2013 LPELR–21895(SC); Tafida V. F.R.N. (2013) LPELR 21859 (SC). PER TUKUR, J.C.A.

THE BURDEN OF PROOF IN CRIMINAL CASES

The Supreme Court in the case of ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus: “The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 paras A-C; Solola v. The State(2005) 5 (Pt. 1) 135.”
See: NNAJIOFOR v. PEOPLE OF LAGOS STATE (2015) LPELR 24666(CA); TOMETIM v. STATE (2014) LPELR-22788(CA); and ABBEY v. STATE (2017) LPELR-42358(SC). PER TUKUR, J.C.A.

THE INGREDIENTS OF THE OFFENCE OF CRIMINAL BREACH OF TRUST

Section 311 of the Penal Code, under which the Appellant was charged clearly provides for the offence of 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 straightforward interpretation of the above cited statute reveals the following ingredients of the offence of criminal breach of trust, that is:
1. That the Accused was entrusted with property or that the Accused had dominion over property;
2. That the Accused either:
(a) Misappropriated the property; or
(b) Converted the property to his own use; or
(c) Made use of the property; or
(d) Disposed of the property;
3. That he did any of the acts listed under the second ingredient in violation of:
(i) Any direction of law prescribing the mode in which such trust was to be discharged; or
(ii) Any legal contract expressed or implied which he had made concerning the trust; or
(iii) That he intentionally allowed some other persons to do as above;
4. That he carried out any of the acts as listed under the second ingredient dishonestly.
The Supreme Court in the case of UZOAGBA & ANOR v. COP (2012) LPELR-15525(SC) (Pp 12-12 Paras B-F), reiterated the ingredients of the offence of criminal breach of trust thus:
“The elements of the offence of criminal breach of trust are: (i) that the Accused person was entrusted with property or dominion over it. (ii) that he misappropriated it, converted it to his own use or disposes of the said property. (iii) that the Accused did so in violation of any direction of law prescribing the mode in which such trust was to be discharged or any legal contract express or implied which he had made concerning the trust or that he intentionally allowed some other persons to do so and (iv) that he acted dishonestly.”
See: ADEYANJU v. F.R.N (2020) LPELR-50243(CA); ADENIJI v. FRN (2021) LPELR-52818(CA); and BARI v. KANO STATE (2021) LPELR-56176(CA). PER TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Adamawa State, sitting on appeal in APPEAL NO. HC/ADSY/2CA/2021, delivered on 22nd June, 2021, in favour of the Respondent.

The material facts of the case leading to the instant appeal is that the Appellant was convicted by the Upper Area Court 1 Yola Adamawa State in a judgment delivered on 29th December, 2020, for the offences of cheating punishable under Section 322 of the Penal Code and criminal breach of trust punishable under Section 312 of the Penal Code. The facts upon which the case against the Appellant was based are that the Appellant was allegedly given about 60 liters of PMS valued at N8,700,000.00 (Eight Million, Seven Hundred Thousand Naira) in his capacity as Manager of a Petrol Station situate at Mubi South Local Government of Adamawa State. The Appellant sold out the product but failed to remit the full sum to the business account but only paid in N2,841,000.00 (Two Million, Eight Hundred and Forty-one Thousand Naira). The Appellant in response posited that some of the people the petrol was sold to had not yet paid. The trial Court subsequently sentenced the Appellant to prison terms of 3 years and 4 years respectively in respect of the two offences without an option of fine, with the sentences to run consecutively. Appellant was also ordered to pay compensation to the nominal Complainant.

The Appellant dissatisfied with the decision of the Upper Area Court 1, sought and obtained leave of the lower Court on 17th September, 2021 to appeal to the lower Court (pages 230-231 of the record). The lower Court in a judgment delivered on 22nd June, 2021, affirmed the decision of the Trial Upper Area Court 1 convicting the Appellant of the offence of criminal breach of trust. The Court further reviewed the sentence imposed by including the option of paying a fine of N30,000.00. The conviction and sentence on the charge of cheating was set aside by the lower Court.

Dissatisfied with the judgment of the lower Court, the Appellant appealed the judgment via a Notice of Appeal dated and filed on 17th September, 2021, with 9 grounds of appeal.

The Appellant`s Brief of Argument was filed on 31st January, 2022, but deemed properly filed on 29th March, 2022.

Appellant`s counsel formulated a sole issue for determination to wit:
Whether the lower Court was right when it affirmed the conviction of the Appellant for the offence of Criminal breach of trust under Section 311 of the Penal Code Law of Adamawa State (now repealed) having regard to the totality of the evidence before it. (Grounds 1-9)

Respondent’s Brief of Argument was filed on 28th February, 2022, but deemed as properly filed on 29th March, 2022.

Respondent’s counsel also distilled a sole issue for determination thus:
“whether the trial Court, was right in affirming partially the judgment of the lower Court coupled with the overwhelming cogent, credible and convincing evidences both oral and documentary evidences to the extent of varying the judgment of the lower Court by graciously substituting the conviction to a fine, but affirmed and ordered for restitution/compensation to the norminal complainant since the decision of Court or a portion thereof, not appealed against remain binding on the parties and all sundry, judicially or judiciously.’’

A careful consideration of the issues as presented by both parties reveal that they are substantially the same as they focus on the validity of the lower Court’s decision. I will resolve this appeal on the Appellant’s sole issue.

ISSUE
WHETHER THE LOWER COURT WAS RIGHT WHEN IT AFFIRMED THE CONVICTION OF THE APPELLANT FOR THE OFFENCE OF CRIMINAL BREACH OF TRUST UNDER SECTION 311 OF THE PENAL CODE LAW OF ADAMAWA STATE (NOW REPEALED) HAVING REGARD TO THE TOTALITY OF THE EVIDENCE BEFORE IT. (GROUNDS 1-9)
Learned counsel for the Appellant argued that the Prosecution at the Upper Area Court failed to discharge the burden of proof in criminal trials, in relation to the offence of criminal breach of trust charge against the Appellant under Section 311 of the Penal Code Law of Adamawa State (now repealed), as the Prosecution failed to prove the crucial element of trust relationship between the parties.

He relied on: Section 135 of the Evidence Act 2011; Adedara v. State (2009) LPELR-8194 (CA); Godwin Chukwuma v. FRN (2011) 13 NWLR (Pt.1264) 391; George v. FRN (2014) 5 NWLR (Pt.1399) 1 at 24 paras C-D; and Kure v. COP (2020) 9 NWLR (Pt.1729) page 296 at 302.

Counsel submitted that an examination of the evidence before the trial Court, particularly the testimonies of the Prosecution Witnesses reveals that there was no trust relationship between the Appellant and the nominal Complainant, but that the relationship which existed between the Appellant and nominal Complainant was one of a direct business transaction of Master and Servant relationship, where the nominal Complainant supplied petrol to the Appellant to sell and remit the money to the nominal Complainant and for the nominal Complainant only, not for the benefit of another, that is a Beneficiary, which is a crucial element of trust or fiduciary relationship as envisaged under Section 311. He referred to the case of Kure v. COP (Supra) at 321 paras B-E for the definition of criminal breach of trust.

Learned counsel posited that the lower Court was wrong to have relied on the ordinary English meaning of the word ‘’trust’’ to have affirmed the Appellant’s conviction; that the lower Court was wrong to have held that the Appellant as Manager of the nominal Complainant (PW4) had placed himself in fiduciary relationship akin to a Trustee; that the findings of the lower Court to the effect that the Appellant misappropriated the PMS in his possession and acted dishonestly would not avail the Respondent, as such must be in relation to breach of trust; and that the lower Court’s distinction of the case of Kure v. COP from the facts of this appeal cannot stand.

Learned counsel argued that the matter was wrongly instituted as a criminal matter before the Upper Area Court 1, as it was a purely civil transaction arising from the Appellant’s failure to repay the money owed the nominal Complainant based on the petrol the Appellant had received from the nominal Complainant and sold, without remitting the whole sum due. Counsel also pointed out that it was improper for the Police to have engineered the agreement to repay (‘’exhibit A2’’) and enforced same as the Police are not debt recovery Agents.
He relied on Kure v. COP (Supra) at 22 paras E-C, 325 to 326 paras G-H.

Counsel asserted that contrary to the findings of the lower Court, there was no need to appeal against the award of compensation, as it was a consequential order, predicated upon the conviction of the Appellant for the offence of criminal breach of trust and a successful overturning of the conviction would mean that the compensation would not stand in line with the notorious principle expounded in the case of MACFOY V. U.A.C. LTD (1962) AC 152.

On the other hand, learned counsel for the Respondent argued that the case against the Appellant was proven beyond reasonable doubt as required by law and that at the trial Court, the Respondent presented 6 Witnesses who gave unchallenged testimony and tendered two exhibits: A1 and A2 in proof of the offence of criminal breach of trust.

He relied on:Abdullahi Ibrahim V. State (2014) NWLR (Pt. 1394) 305 at 338 Paragraphs D-E; Duru v. The State (2017) 4 NWLR (PT. 1554) 1 AT 24 PARAGRAPHS F-H; Michael Uzoagba V COP (2014) 5 NWLR (Pt. 1401) 441 AT pp.457, paras A-C, 463-464; KURE V COP {2020} 9 NWLR {PT.1729}.

Learned counsel submitted that the case of Kure v. COP (Supra) relied on by the Appellant to argue that the offence of criminal breach of trust was not established against the Appellant at trial, is inapplicable to this appeal, as the facts and circumstances in that case are different from this instant one, as rightly found by the lower Court, hence the lower Court was correct to have refused to be bound by the decision in the case in line with the trite principle that distinguishing a case allows the Court to do justice to each case, based on the facts AND circumstances of the case before it.

He relied on: Emeka v. Okadigbo {2012} 18 NWLR (PT.1331} 55 at 96; AG Lagos State v. Eko Hotels LTD AND ANOR (2017} LPELR 43713 (SC}; and Ardo V Nyako (2014} LPELR 22878 (SC}.

Learned counsel argued that the issue of the Police not being debt recovery agents and how the repayment agreement came into being as argued by Appellant’s counsel are mere speculation.

Counsel asserted that failure of the Appellant to appeal against the order of compensation in the sum of N4,720,500 {Four Million, Seven hundred and Twenty Thousand Five Hundred Naira} made pursuant to Section 78 of the Penal Code Law of Adamawa State 2018 (as amended) meant that the order is extant and subsisting in line with the trite principle of law to the effect that a decision of a Court on portion thereof not appealed against remains binding and enforceable on the parties.

RESOLUTION OF THE ISSUE
The law is sacrosanct that in order for an act or omission to be considered a crime, such must be prescribed by a written law, with punishment for such act or omission prescribed therein. See: George V. FRN 2013 LPELR–21895(SC); Tafida V. F.R.N. (2013) LPELR 21859 (SC).

The law also fixes a heavy burden on the Prosecution to clearly establish that the Accused committed the offence he is being charged with beyond reasonable doubt. The reason for this stringent requirement of the law is not farfetched as the consequence of a successful criminal trial is punishment by the law and it would be regrettable indeed for an innocent man to be wrongly punished for a crime he did not commit.
In line with the above, Section 135 of the Evidence Act 2011 provides thus:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2)The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The Supreme Court in the case of ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus:
“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 paras A-C; Solola v. The State(2005) 5 (Pt. 1) 135.”
See: NNAJIOFOR v. PEOPLE OF LAGOS STATE (2015) LPELR 24666(CA); TOMETIM v. STATE (2014) LPELR-22788(CA); and ABBEY v. STATE (2017) LPELR-42358(SC).

Section 311 of the Penal Code, under which the Appellant was charged clearly provides for the offence of 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 straightforward interpretation of the above cited statute reveals the following ingredients of the offence of criminal breach of trust, that is:
1. That the Accused was entrusted with property or that the Accused had dominion over property;
2. That the Accused either:
(a) Misappropriated the property; or
(b) Converted the property to his own use; or
(c) Made use of the property; or
(d) Disposed of the property;
3. That he did any of the acts listed under the second ingredient in violation of:
(i) Any direction of law prescribing the mode in which such trust was to be discharged; or
(ii) Any legal contract expressed or implied which he had made concerning the trust; or
(iii) That he intentionally allowed some other persons to do as above;
4. That he carried out any of the acts as listed under the second ingredient dishonestly.
The Supreme Court in the case of UZOAGBA & ANOR v. COP (2012) LPELR-15525(SC) (Pp 12-12 Paras B-F), reiterated the ingredients of the offence of criminal breach of trust thus:
“The elements of the offence of criminal breach of trust are: (i) that the Accused person was entrusted with property or dominion over it. (ii) that he misappropriated it, converted it to his own use or disposes of the said property. (iii) that the Accused did so in violation of any direction of law prescribing the mode in which such trust was to be discharged or any legal contract express or implied which he had made concerning the trust or that he intentionally allowed some other persons to do so and (iv) that he acted dishonestly.”
See: ADEYANJU v. F.R.N (2020) LPELR-50243(CA); ADENIJI v. FRN (2021) LPELR-52818(CA); and BARI v. KANO STATE (2021) LPELR-56176(CA).

I have examined the case of KURE v. COP (2020) LPELR-49378(SC), and I disagree with the submissions of the Appellant that the case is indistinguishable from the facts of this present appeal. In that case, the money in question was given to the Appellant in order to enable him procure a Giraffe, so the Court was of the view that the money was not entrusted to him for the benefit of another. Furthermore, the testimonies of Witnesses principally centered on breach of contract terms. The foregoing is very different from the facts in issue here. In the instant appeal, the Appellant was entrusted with petroleum products which he was to sell, not for his own benefit, but for the benefit of the nominal Complainant. There can be no doubt that there exists a fiduciary relationship between the owner of goods and the person which the owner has charged with selling the goods for the owner’s benefit.
This Court in the case of FRN v. WALBE (2021) LPELR-55158(CA) (Pp 57-58 Paras C-B), restated what would constitute the creation of trust in criminal matters thus:
“In all the cases given in illustration of Section 311 of the Penal Code in which a person is said to have committed criminal breach of trust, the property misappropriated is the property of another person or property of which the offender was not the beneficial owner.’’

A careful examination of the evidence at trial also reveals that the Prosecution had successfully proven the case of criminal breach of trust against the Appellant to the required standard of proof beyond reasonable doubt, as the testimonies of the Witnesses go to show that the Appellant used the property in a manner contrary to the purpose for which he was given, in order to dishonestly profit from same. I thus find no basis to disturb the findings of the lower Court.

In the final analysis, the sole issue nominated by the Appellant is resolved against him. The appeal lacks merit and is hereby dismissed.

The judgment of the lower Court delivered on 26th June, 2021 in Appeal No. HL/ADSY/2CA/2021 between Mohammed Yauba V. Commissioner of Police is hereby affirmed.

CHIDI NWAOMA UWA, J.C.A.: I read in advance, the judgment delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking in merit. I also dismiss same and affirm the judgment of the trial Court sitting in its appellate jurisdiction in Appeal No. HL/ADSY/2CA/2021 delivered on 26th June, 2021.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft, the lead judgment of my learned brother, JAMILU YAMMAMA TUKUR, JCA, where he dismissed the appeal.

I am in agreement with the reasoning and conclusion therein and adopt the judgment as mine. I have nothing extra to add.