Bukar Mohammed v. Federal Republic Of Nigeria (2025)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

The appellant operates a Bureau De Change in Maiduguri, Borno State. He had an arrangement with the nominal complainant where monies of Chadian traders who come to purchase goods in Nigeria are sent in advance to the appellant and upon the arrival of the traders, they collect the money from the appellant for their business.

Sometime in 2018, the sum of N43,328,000.00 (Forty-Three Million, Three Hundred and Twenty-Eight Thousand Naira) was in the usual course of the arrangement sent to the appellant.

Upon the arrival of the Chadian traders in Nigeria, the appellant informed them that there was no money to give to them. All demands and remonstrations to the appellant yielded no result.

A petition was then written against the appellant to the Economic and Financial Crimes Commission.

Subsequently, the appellant was arraigned and charged with obtaining money by false pretences contrary to section 1 (1) (b) and punishable under section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

The matter went to trial and the prosecution called three witnesses and tendered documentary exhibits in proof of the charge. The appellant testified in his defence and did not call any other witness.

The matter was thereafter adjourned for address. On the date fixed for adoption of address, the prosecution applied to amend the charge to charge the appellant for criminal breach of trust contrary to section 311 and punishable under section 312 of the Penal Code Law, Cap. 102, Laws of Borno State of Nigeria.

The amendment was granted, and the appellant took a fresh plea to the amended charge after which the case was adjourned again for address. The lower court delivered its judgment on 12th September, 2023 and convicted the appellant on the amended charge.

The judgment of the lower court is at pages 62-70 of the records of appeal. The appellant, piqued by the decision of the lower court, appealed against the same by notice of appeal filed on 10th December, 2023. The said notice of appeal is at pages 71-74 of the records of appeal.

The records of appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal. In the appellant’s brief which was filed on 28th June, 2024, but deemed as properly filed on 3rd July, 2024, two issues were distilled for determination, scilicet:

1. Whether the learned trial court was right to have adjourned the matter for adoption of addresses after taking the plea of the appellant on the amended charge without affording him any opportunity to defend the amended charge? Grounds 1 and 2.
2. Whether in view of the evidence led, the offence of criminal breach of trust has been established against the appellant to warrant his conviction? Grounds 3, 4 and 5

The respondent filed its brief of argument on 16th August, 2024 but deemed as properly filed on 4th December 2024. It equally formulated two issues for determination, videlicet:

I. Whether the learned trial Judge was not right having regards to the evidence of the prosecution witnesses, PW1-PW2-PW3 and the documents tendered and admitted in evidence as exhibits, to have convicted and sentenced the appellant/accused person to pay a fine of N200,000 or to go to prison for a term of 1 year imprisonment and ordered for restitution of the sum of N13,234,100.00 to the nominal complainant or to go to prison for (seven) 7 years imprisonment?

II. Whether the learned trial Judge was not right to have convicted the appellant on the strength of the amended charge without affording him further opportunity to defend the amended charge?