Mukhtar Yusuf Gwadabe V. Federal Republic of Nigeria (2016)

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OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

This is an appeal against the judgment of the Kano State High Court delivered on 9/10/2012 by Hon. Justice Dije Abdu Aboki, in which the Appellant was found guilty on a two count charge of criminal breach of trust punishable under Section 312 of the Penal Code and the issuance of a dishonored cheque, punishable under Section 1(1) (b) (i) of the Dishonoured Cheques (Offences) Act, 2004. He was sentenced to two years imprisonment or the payment of a fine of N200, 000 for the first offence and six months imprisonment or the payment of a fine of N50,000 for the second offence, the sentences to run concurrently.

In addition, the Appellant was to pay compensation to PW2 of the sum of N76million and, in default, to serve five years imprisonment. He paid the fine of N200,000. Dissatisfied, however, with his conviction and sentence, he filed a Notice of Appeal to this Court on 13/1/13, subsequently amended by leave of the Court. The Amended Notice of Appeal, containing 16 grounds of appeal, was filed on 7 /2/14.

?The facts leading to this appeal are that the Respondent, through the agency

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of the Economic and Financial Crimes Commission (EFCC) prosecuted the Appellant in the Court below, presenting three prosecution witnesses. The case of the prosecution is that PW2, Nura Ammani, a foreign exchange dealer based in Kaduna, contacted the Appellant, also in the same trade, based in Kano, for the supply of one Million US Dollars. The Appellant agreed to supply the dollars at the rate of N152 to one dollar, for the total sum of N152 Million Naira. The Appellant came down to meet with PW2, who issued a draft of N152 Million, which the Appellant lodged in his account at Intercontinental Bank, Kano. The Appellant only supplied $500,000 (Five Hundred Thousand Dollars) promising to send the balance when he returns to Kano. He, however, did not send the balance, claiming that the dollars were not readily available. Following demands from PW2, the Appellant, after a period of three months, met with PW2 in Kaduna and issued him with a cheque for the Naira Balance of N76 Million (Exhibit A). He also wrote a letter of undertaking, dated 31/7/09 (Exhibit B) promising to refund the said sum on or before 30th August 2009. The cheque, on presentment, was, however,

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dishonoured. PW2 sent a petition to the EFCC office in Abuja, who directed same to their Kano office.

The Appellant testified in his defence, as DW1, and called an additional witness, a fellow Bureau de Change operator, operating from the same office as him. The Appellant in his evidence agreed that he was given the sum of N152 Million for the purchase of $1 Million. He alleged that the Appellant instructed him to transfer the said sum to his (PW2) account, CGC Nig Ltd, Bank of China, Paris Branch. The Appellant transferred half of the money to one Umar Abubakar of Galaha Investment who sent $500,000 to CGC account in Paris. He (Appellant) used the balance to buy dollars, which he sent to Dubai, giving instructions for it to be wired to CGC Nig Ltd, PW2’s client’s account. He alleged that PW2 confirmed his customer’s receipt of the said sum and that a copy of the transfer was sent to PW2 by email. On being informed by PW2 that his customer did not receive the balance, he (Appellant) contacted Umar Abubakar Galaha, who requested for time to get the dollars, which he said was scarce. When the dollars were not forthcoming, PW2 requested for a refund of the

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Naira equivalent, which Umar Abubakar agreed to, but defaulted. He thence went to PW2 in Kaduna with apologies. PW2 requested that he write an undertaking, which he did (Exhibit B). He also wrote a cheque (Exhibit A), requesting that PW2 present the cheque only after Umar Abubakar confirms that he has paid the money into the Appellant’s account. PW2 agreed to wait for a week and if the money was not deposited, would take legal action.

The trial Judge, in his judgment, held the case of the prosecution proved. He found the account of the transaction presented by the Appellant that payment was to be effected through transfer to the account of a company called CGC Nig Ltd, contradictory.

Briefs of arguments, in accordance with the rules of this Court, were filed. The Appellant’s Brief, settled by S.J Gani Esq of S.J, Gani & Co, is dated 06/03/2014 and deemed as properly filed, with leave of this Court, on 3/12/2014. The Respondent’s Brief, settled by M.S Abubakar Esq, Deputy Chief Legal Officer, Legal and Prosecution Dept, EFCC Kano Zonal Office, dated 26/05/2015, was deemed properly filed by this Court on 1/12/2015.

Learned counsel to the