Magdalene Onogwu V. The State (1995)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal against the decision of the Court of Appeal sitting in Jos, which on 5th June, 1991, upheld the conviction of the appellant imposed on her by the High Court of Appeal. Makurdi, Benue State, for the offence of criminal breach of trust punishable under Section 314 of the Penal Code.

The appellant, who was a cashier with the Bank of the North Limited, Makurdi, was on 17th December, 1984 arraigned along with one Michael Ogwuche as well as one Davies Shaibu as 1st, 2nd, and 3rd accused persons respectively, before the Chief Magistrate Court presided over by Mr. S.O. Ochimana (as he then was) on a First Information Report alleging criminal Conspiracy, forgery and theft of N50,500.00 offences punishable under Sections 97(2), 364 and 289 of the Penal Code. After taking the oral evidence of all ten prosecution witnesses, the learned Chief Magistrate, upon discharging the 3rd accused for lack of connecting evidence, framed a two-count charge, the first being that of conspiracy against both 1st and 2nd accused and the second count being for theft against the 1st accused alone.

After each of the two accused persons had pleaded not guilty to the charge, they were each put on their defence. The learned Chief Magistrate in a considered judgment of 29th November, 1985, convicted both the 1st and 2nd accused of the offence of criminal conspiracy jointly and the 1st accused alone. of the offence of theft as charged. While they were each sentenced to four months imprisonment with a fine of N100 on the first count, the 1st accused (hereinafter the rest of this judgment referred to simply as appellant) was separately sentenced to three years imprisonment, with all the sentences against her being made to run concurrently without an option of a fine.

Aggrieved by this decision, the appellant appealed to the High Court of Benue State sitting in Makurdi. In its appellate jurisdiction, the High Court reviewed the case, wherein the learned State Counsel was recorded as saying on behalf of the State/respondent that the sentence passed on the appellant was excessive and further that

“I concede that the theft was not the proper charge but criminal breach of Trust under Section 314 Penal Code. I refer to Section 217 of the Criminal Procedure Code and urge your Lordships to alter the charge accordingly.”

Thereupon, the High Court of Appeal proceeded to dismiss the appellant’s appeal, substituted a conviction for criminal breach of trust for that of theft, though reducing he sentence from three years to one year imprisonment, purporting to act pursuant to section 217 of the Criminal Procedure Code.

Sequel to the above, the High Court concluded by saying:

…………….Taking the totality of these into consideration, we substitute in place of the three year term of imprisonment, a term of imprisonment of one year under Section 314 of the Penal Code and, in addition, a fine of N100. The sentence of four month under the conviction for conspiracy and this one reduced to one year imprisonment with a fine of N100 shall run concurrent” ,”

Upon a further appeal by the appellant to the Court of Appeal, Jos (hereinafter in the rest of this judgment referred to as the court below), that court on 5th June, 1991, allowed the appeal against the conviction for criminal conspiracy but dismissed it against the conviction of criminal breach of trust, having been satisfied with the finding of fact by the appellate High Court that the evidence disclosed an offence of that description and particulars. The court below albeit reduced the sentence of one year to that of six months imprisonment.

It is against this conviction that the appellant through her counsel. Chief S.M. Olakurin, SAN has further appealed to this court premised on a Notice and Ground of Appeal containing one ground of appeal which with leave, was later substituted with seven grounds (grounds 2 and 7 which are identical and certainly overlap). The appellant, also through learned Senior Advocate subsequently filed and served her brief of argument on the respondent. In it, the appellant submitted the following six questions for our determination, to wit:

1. Is there any evidence on record to justify any case against the appellant for conspiracy, for theft or indeed for criminal breach of trust’
2. Upon the High Court’s acceptance of the submission of the learned State Counsel that

“………… theft was not the proper charge……………(See page 80 of the Record)

should not the appellate court have acquitted and discharged the successful appellant against theft’

3. Is it fair for the appellate court to convict and impose a fine on a charge that was not formally preferred against appellant. Particularly as the appellant was not given an opportunity to put her mind to such a charge and defend it
4. Can the appellant really be said to have been entrusted with the Bank’s money so as to place proposed charge and conviction for the criminal breach of trust, just like the cognate charge of theft
5. Assuming that the appellant failed to follow “laid down” procedure (which has not been established before the Court by acceptable evidence), can such dereliction of duty without evidence of “dishonest intention” amount to a criminal breach of trust Even then, has the ownership of the property in the money paid out been sufficiently established in the lower court
6. Just as the Court of Appeal rightly discharged the appellant from the charge of conspiracy (see page 160, lines 1 to 3 of the Record) is it not right on the facts for the Court of Appeal to reject the High Court’s conviction of the appellant for criminal breach of trust contrary to S. 314 of the Penal Code.

On the 16th day of March 1995, the date fixed for the hearing of this appeal.