⦿ CASE SUMMARY OF:
Theophilus Kure v. Commissioner Of Police (2020) – SC
by NSA PaulPipAr
– Concurrent findings;
Commissioner Of Police
(2020) LPELR-49378 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
Paul Adamu Galumje, J.S.C.
* FOR THE APPELLANT
– L.A.O Nylader, SAN.
* FOR THE RESPONDENT
– Mr. E.E. Ekhasemomhe.
⦿ FACT (as relating to the issues)
The Appellant a “veterinarian” entered into a contract with the ministry of culture and tourism, Rivers State, through one Mrs. Sokari Davies, the Director of Tourism, to supply a calf giraffe in the sum of N3.5 Million. The said sum was paid on 1/2/2013 into the account of the Appellant domiciled at the United Bank for Africa (UBA). Appellant promised to deliver the calf giraffe in two weeks. Several months passed, no delivery was made despite repeated demands made to the Appellant to deliver.
Mrs. Sokari Davies, who stood in for the ministry of culture and tourism, Rivers State, decided to check whether the money she deposited in the Appellant’s account was still intact. To her surprise, the Appellant had been making piecemeal withdrawals leaving a balance of One Million Naira (N1,000,000.00) in the account. She now went to Court, sought for and obtained an order ex-parte, which placed lien on the Appellant’s account, and by the time the order was served on the bank there was further withdrawal from the said account, which brought the balance to the credit of the Appellant down to Nine hundred and Ninetyfive Thousand Naira (N995,000.00). This balance was subsequently transferred to the account of Mrs. Sokari Davies.
Mrs. Sokari Davies who testified at the trial Court as PW1, reported the transaction to the police in Kaduna, where the Appellant lived. As a result of the report, the Appellant was arrested and arraigned before the Chief Magistrate’s Court for the offences of cheating and criminal breach of trust contrary to Sections 312 and 322 of the Penal Code.
In a reserved judgment, delivered on the 23rd of October, 2015, the trial Chief Magistrate found the Appellant guilty as charged and sentenced him to a fine of N5,000.00 or 1 year imprisonment for the offence of cheating and a fine of N8,000.00 or 2 years imprisonment for criminal breach of trust. In addition, the Appellant was ordered to pay the sum of N2,505,000.00 as compensation to the nominal complainant, being the balance of the N3.5 Million paid to the Appellant by the nominal complainant for male calf giraffe which he failed to deliver to her, since the nominal; complainant had already retrieved the sum of N995,000.00 from the bank account of the convict at UBA Plc.
The Appellant being aggrieved appealed to the High Court which dismissed his appeal. He further appealed to the Court of Appeal which also dismissed his appeal; this is a further appeal now to the Supreme Court.
1. Whether the lower Court was right to have upheld the conviction of the Appellant by the lower Courts for both criminal breach of trust and cheating based on the same factual situation in respect of one transaction in the same proceedings.
2. Whether the lower Court was right to have relied on the judgment of the trial Court to uphold the conviction and sentence of the Appellant for criminal breach of trust and cheating having regard to the evidence.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. For a trust to be valid, it must involve specific property, reflect the settlor’s intent and be created for a lawful purpose. Where a property is obtained deceitfully or through fraudulent and dishonest inducement, such transaction cannot amount to a trust. Where there is no trust, breach of such trust cannot be founded by any tribunal or Court. By the different ingredients that lead to the commission of the two offences with which the Appellant was charged and convicted, there is no way that the Appellant could be properly convicted for the two offences, involving the same sets of facts of delivering money to the Appellant by the Rivers State Ministry of Culture and Tourism for the contract of supply of calf giraffe. The first issue is therefore resolved in favour of the Appellant.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Since there is no evidence of deceit on the part of the Appellant, the trial Court was wrong in finding him guilty of the offence of cheating. Although it is not in the character of the Supreme Court to interfere with concurrent decisions of two or three lower Courts, however where such decision is unreasonable and cannot be supported by evidence and the law, this Court has a duty to interfere in order to meet the ends of justice. I am of the firm view that the lower Court acted in error, when it affirmed the decision of the Kaduna State High Court which in turn affirmed the decision of the Chief Magistrate’s Court which found the Appellant guilty of the offence of cheating.
ii. In the instant case, the N3.5 million naira paid to the Appellant include cost for logistics and procurement of the giraffe and the Appellant’s profit since the giraffe was not a commodity that was on display and could be bought for the N3.5 million. The Appellant testified that the animal was not available in Nigeria and that its procurement was possible only in Niger Republic or Chad. Was he expected to trek to these countries to procure the calf giraffe with the money advanced to him. Clearly the intention of the Ministry of Culture & Tourism, Rivers State was for the Appellant to manage the money in such a way as to procure the calf giraffe. It was not its business to dictate how the giraffe was to be procured. There is no evidence that shows the beneficiary of the money that was given to the Appellant to buy the giraffe was a person other than the Appellant.
iii. Having considered the evidence at the trial Court, I am of the firm view that the transactions involved in this case were based on contractual agreement, as there is no evidence of criminal breach of trust.
S. 213 Criminal Procedure Code;
S. 320(a) Penal Code;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Onagoruwa v. State (1993) LPELR 43456 (CA), Niki Tobi, JCA (as he then was) said:- “There is no law known to me where a breach of agreement between two parties, which has no element of criminality, can result in a criminal charge and subsequent conviction. At best, it can be a breach of a contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
In order to prove the offence of cheating, the prosecution must prove that the Rivers State ministry of Culture and Tourism was deceived and thereby fraudulently induced by the Appellant to deliver the sum of N3.5 Million to it. – Paul Adamu, JSC. Kure v. COP (2020)
For the prosecution to succeed in establishing the offence of criminal breach of trust, it must prove the following ingredients:- 1.That the accused person was entrusted with property or dominion over it. 2. That he misappropriated it, converted it to his own use or disposed of the said property. 3. 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 expressed or implied which he had made concerning the trust or that he intentionally allowed some other persons to misappropriate, convert or dispose of the property in violation of the mode of execution of the trust. – Paul Adamu, JSC. Kure v. COP (2020)
While the offence of cheating under Section 322 of the Penal Code involves deceit and or fraudulent and dishonest inducement of the person so deceived to part or deliver the property in issue to any person, the offence of criminal breach of trust does not involve deceit and/or fraudulent and dishonest inducement of the settlor to deliver the property for which the trust is created, to the trustee. – Paul Adamu, JSC. Kure v. COP (2020)
For a trust to be valid, it must involve specific property, reflect the settlor’s intent and be created for a lawful purpose. Where a property is obtained deceitfully or through fraudulent and dishonest inducement, such transaction cannot amount to a trust. Where there is no trust, breach of such trust cannot be founded by any tribunal or Court. – Paul Adamu, JSC. Kure v. COP (2020)
One worrisome procedure adopted at the Chief Magistrate’s Court was the charge against the Appellant for criminal breach of trust and cheating the Ministry of Culture & Tourism in the sum of N3.5 million, inspite of the fact that the nominal complainant clearly stated in evidence that they had recovered the sum of N995,000.00 from the N3.5 Million naira which was paid into the Appellant’s account. The only outstanding balance against the Appellant was in the region of N2,505,000.00. The Appellant was therefore convicted on a defective charge, which stipulated that he committed criminal breach of trust and cheating his victim in the sum of N3.5million. Although the error is not so material as to vitiate the proceedings in this case, it shows how desperate the trial Court had become in finding reasons to convict the Appellant. – Paul Adamu, JSC. Kure v. COP (2020)
As I went through the facts of this case, I was wondering how a purely civil matter could easily metamorphose and transubstantiate into a purely criminal case. The end result now is that the Appellant has suffered irreparable damage, disgrace, shame, odiousness and untold hardship in the hand of the Police that is constitutionally and legally saddled with prosecution of criminal offences. The police have muzzled the rights and freedom of Nigerians even where cases are clearly outside their jurisdiction, power or corridor. If this is not curbed, everybody including the judicial officers will suffer always from floodgates of civil matters being hijacked by the police and transmuted into crimes. If this is not tackled, everybody would have suffered in the merciless hand of the police who has become a law unto itself in this country. The primary duty of the Police by Section 4 of the police Act is the prevention of crime, investigation and detection of crime and the prosecution of offenders. – Abba A Ji, JSC. Kure v. COP (2020)