Oladimeji Mohammed Edun & Anor V. Federal Republic Of Nigeria (2019)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
These two appeals – SC.960/2017: OLADIMEJI MOHAMMED EDUN v. FEDERAL REPUBLIC OF NIGERIA, and SC.961/2017: ZARAB VENTURES LIMITED v. FEDERAL REPUBLIC OF NIGERIA were argued, separately, on 28th November, 2018 before this same Panel. The two appeals, having the same substratum, emanate from the charge No. KWS/20C/2015 before the Kwara State High Court (Coram: M. AbdulGafar, J.) and the appeal No. CA/IL/C.100/2016 at the Court of Appeal, Ilorin Division. Because of the commonality of the facts and the issues in the appeal, including the Counsel on both sides in the two appeals, it becomes necessary that judgments in the two appeals be consolidated though the appeals retain their distinct and separate identities.
The Appellant in the appeal No. SC.960/2017 was the 1st Accused at the trial Court, and also the 1st Appellant at the Lower Court. He was the Chief Executive Officer and the Managing Director of Zarab Ventures Limited, the Appellant in the appeal No. SC.961/2017 and the 2nd Appellant at the Lower Court. In this judgment I shall hereinafter be referring
1
to the Appellants in the appeal No. SC.960/2017 and SC.961/2017 respectively as the 1st and 2nd Accused.
The 1st and 2nd Accused were jointly tried on a three-count charge at the Kwara State High Court, Ilorin that reads:
COUNT ONE
That you Oladimeji Mohammed Edun, (being MD/CEO and sole signatory of Zarab Ventures Ltd) and Zarab Ventures Ltd on or about December, 16, 2008 in Ilorin within the Ilorin Judicial Division of the High Court of Kwara State while in such capacity did dishonestly misappropriate the sum of N6,000,000.00 (Six Million Naira) which was part of the money entrusted to you by Kwara State MDG’s – CGS for the construction of boreholes in some Local Government Area and you thereby committed an offence contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Act.
COUNT TWO
That you Oladimeji Mohammed Edun (being MD/CEO and sole signatory of Zarab Ventures Ltd) and Zarab Ventures Ltd on or about 18th May 18, 2009 in Ilorin within the Ilorin Judicial Division of the High Court of Kwara State while in such capacity did dishonestly misappropriate the sum of N1,000,000.00 (One Million
2
Naira) which was part of the money entrusted to you by Kwara State MDG’s – CGS for the construction of boreholes in some Local Government Areas and you thereby committed an offence contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Act.
COUNT THREE
That you Oladimeji Mohammed Edun (being MD/CEO and sole signatory of Zarab Ventures Ltd) and Zarab Ventures Ltd on or about the May 21, 2009 in Ilorin within the llorin Judicial Division of the High Court of Kwara State while in such capacity did dishonestly misappropriate the sum of N7,000,000.00 (Seven Million Naira) which was part of the money entrusted to you by Kwara State MDG’s – CGS for the construction of boreholes in some Local Government Areas and you thereby committed an offence contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Act.
A total of three (3) witnesses testified for the Prosecution. The sole defence witness was the 1st Accused.
The facts of the case, which in my view are not in dispute, are that: the 1st Accused is the Managing Director/Chief Executive Officer of the 2nd Accused (a company registered
3
in Nigeria as a Limited Liability Company under the Companies and Allied Matters Act, as amended). The 1st Accused is also a politician. He was a member of the House of Representatives at the National Assembly. He was at some material time a member of the Political Party in power in Kwara State. Through the 1st Accused the 2nd Accused was awarded contracts for the drilling and provision of 43 motorised boreholes in some Local Government Areas of Kwara State. The contracts were awarded by the Kwara State MDG-CG’s at the rate of N2,013,033.75 per borehole, which translated to the total sum of N86,560,451.25. The contracts were awarded in three tranches of 40, 40 and 3 boreholes vide letters dated 27th April, 20091; 3rd July, 2009, and 30th July, 2009. At the material time the PW.3, Ademola (Demola) Banu, was the officer in charge of MDG projects. He was also the Special Assistant to the Governor of Kwara State on MDG projects. He later became the Commissioner for Finance in the same regime.
The three (3) charges relate to a total sum of N14,000,000.00 paid in three tranches of N6,000,000.00, N7,000,000.00 and N1,000,000.00 by the 1st Accused
4
from the account of 2nd Accused allegedly to some officials of Kwara State Government for onward payments to some third parties. The trial Court believed the 1st Accused on his assertion that he paid the sum of N6,000,000.00 and N7,000,000.00 (a total of N13,000,000.00) to the PW.3, and N1,000,000.00 to Tunji Moronfoye, who, between 2007 – 2011, was Special Assistant to the Governor of Kwara State on Millennium Development Goals (MDG). He was later, in 2011, appointed to the Governor’s Cabinet as the Commissioner for Information and Communication. Tunji Moronfoye, like the then Governor of Kwara State (said to be Dr. Bukola Saraki), did not testify.
The PW.1 and PW.2 are both staff of the Economic and Financial Crimes Commission (EFFC). They were in the team that investigated the facts on which the 1st and 2nd Accused were charged and tried for Criminal Misappropriation. The totality of their evidence is that the 1st Accused admitted that the contracts were awarded to the 2nd Accused for the drilling and provision of 43 motorised boreholes and that some payments for the contracts had been made to the 2nd Accused, and further that on
5
three occasions the Accused paid sums totaling N14,000,000.00 “to State officials” out the contract sum. The PW.1, in particular, testified that the 1st Accused –
admitted in his handwriting that he paid certain individuals the money out of the contract sum as the reason why he could not perform the contract. The contract sum include (sic) the profit margin of the accused. It is unlawful for the accused to give part of the money to public officials who awarded the contract. The accused has done such (some) substantial job on the ground.
The PW.2 recorded some of the extra-judicial statements of the 1st Accused and through him these statements, Exhibit 11, 12, 13 & 14, were tendered in evidence unopposed. The line of defence consistently maintained by the 1st Accused, in Exhibits 11 – 14 and his testimony in Court is that as –
regards – the sum of N14,000,000.00. I am alleged to have given to PW.3 and one Tunji Moronfoye; I did not misappropriate the money. The money is meant for party supporters. When the contract was given to me, PW.3 told me that the contract was for me and some party leaders in Ilorin East Local Government Area –
6
On the understanding that 50% of the profit will be equipment and capacity to do it to it land – – on the understanding that 50% of the profit will be given to other people. I agree to this condition. I gave the N13,000,000.00 representing the 50% of the profit to PW.3 who was in charge. I first gave him N6,000,000.00 cash in his office. I also gave him a cheque for N7,000,000.00 through Nuhu Suleiman. I gave N1,000,000.00 balance to Moronfoye.
In Exhibit 12 the 1st Accused further stated, that the PW.3 told him that the Governor had asked that the sum requested by the PW.3 be dropped “for politicians out of the contract sum”. This line of defence is to the effect that the two Accused, particularly the 1st Accused, paid the total sum of
N14,000,000.00 forming the basis of the three charges of criminal misappropriation, to the PW.3 and Tunji Moronfoye as part of some political arrangement, at the instance of the Governor of Kwara State, designed to maintain some local politicians. In Exhibit 11 the 1st Accused maintained that they could not afford to go back to the sites to complete the jobs contracted because of those 3 payments totaling
7
N14,000,000.00. The PW.3’s attempt or efforts to deny this political arrangement did not impress the trial Court as credible or truthful. The trial Court, holding or finding that the PW.3 was “not a truthful witness”, disbelieved the entirety of PW.3’s evidence.
The foregoing were the facts on which the two Accused were jointly charged and convicted for criminal misappropriation contrary to Section 308 of the Penal Code and Punishable under Section 309 of the same statute. Section 308 of the statute, which defines the offences of criminal misappropriation provides:
- Whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation.
For the purpose of these two appeals the offence allegedly committed is the dishonest misappropriation of the three sums of N6,000,000.00, N7,000,000.00 and N1,000,000.00 (totaling N14,000,000,00) said to be part of the contract sum paid to 2nd Accused as consideration for its drilling and providing 43 boreholes. The contracts were awarded by the Kwara State Government or MDG.
Each of the three charges specifically alleges that the two
8
Accused “did dishonestly misappropriate the sum – which was part of the money entrusted to you by Kwara State MDG’s – CG’s for construction of boreholes-“. The key phrase in each charge is “the money entrusted to you by Kwara State MDG -“. The word “entrusted” is from the verb – entrust, which connotes a principal making somebody, the third party, responsible for doing something or taking care of somebody. See Blacks Law Dictionary 9th Ed. at page 613; Oxford Advanced Learner’s Dictionary now 8th Ed., page 490.
Let me quickly ask: was the 2nd Accused paid the “contract sum, part of which the 1st Accused paid out the three sums, as part of the consideration payable by the Kwara State MDG for the 2nd Accused’s drilling and provision of motorised boreholes, or as mere trust for the benefit of some beneficiaries In other words, was the 2nd Accused a mere trustee I think there is a world of difference between breach of contract and a breach of trust.
A breach of contract, on one hand, is a violation of a contractual obligation by failing to perform one’s own promise under the contract by repudiation of the contract agreement.
9
According to Black’s Law Dictionary 9th Ed. Page 213, a breach of contract may be by non-performance, or by repudiation, or both. Each case gives rise to a civil claim either for damages, or some other remedies including specific performance. A breach of trust, on the other hand, occurs with the trustee’s violation of either the trust terms or the trustee’s fiduciary obligations: Black’s Law Dictionary (supra).
The prosecutor in his judgment did not consider it appropriate to charge the Accused for criminal breach of trust, which by Section 311 of the Penal Code is defined as:
- Whoever, being in any manner entrusted with property or with any dominion over the property, dishonestly misappropriates or converts to his own use 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 to do so, commits criminal breach of trust.
In the two offences: criminal misappropriation defined by Section 308 of the Penal Code and criminal breach of trust
10
defined by Section 311 of the Penal Code, dishonest misappropriation or conversion of property is a common factor. Reed, C J, made it clear in SAMUEL AHMADU SABO v. COMMISSIONER OF POLICE (1973) N.N.L.R. 207, and I agree with him, that in each offence, the accused person, allegedly, dishonestly misappropriates or converts to his own use property in his possession; and that he may be convicted for criminal misappropriation if he dishonestly misappropriates or converts to his own use property in his possession even though he came into possession of that property by way of entrustment.
In the instant case, none of the three charges gave particulars of the terms the money was entrusted to the Accused. The 1st Accused, in both his viva voce evidence and Exhibits 11 14, stated that the PW.3, after the contracts were awarded came to him with the story that the Governor of Kwara State intended, and directed as well, that the sums, the subject of the three charges, be paid out of the contract sum to some unnamed local politicians, and that in compliance he withdrew the sums of N6,000,000.00 and N7,000,000.00 and paid the PW.3, and another
11
N1,000,000.00 which he paid to Mr. Moronfoye. That was 1st Accused’s defence to the charge that he dishonestly misappropriated the said sums entrusted to himself and the 2nd Accused. The PW.3 who should have confirmed the alleged entrustment denied it, and was disbelieved. Thus the 1st Accused/DW.1’s account stands tall and unscathed. The question next: did the prosecution prove every averment of each charge beyond reasonable doubt, the PW.3 having been disbelieved
This is a criminal proceeding. Proof beyond reasonable doubt is the standard of proof. Sections 131(1), 132 and 136(1) of the Evidence Act, 2011 place the burden squarely on the party who asserts the existence of a particular fact to prove the existence of that fact in order to be entitled to judgment.
The trial Court dismissed, as afterthought, the evidence of the 1st Accused that the contracts awarded were “joint award of contract” whereby the monies he paid to the PW.3 and Tunji Moronfoye represented 50% of the profit. The Lower Court at page 171 of the Record affirmed that finding of fact.
This now takes me to the first issue raised by the 1st and 2nd Accused in their respective Appellant’s Brief. That is:<br< p=””
</br<
12
Having regards to the totality of evidence in and the special circumstances of this case, was the Lower Court not wrong in affirming the decision of the trial High Court that Exhibits 10 14 amounted to confession to the offence charge on the basis of which the appellant could be and was convicted without due regards to the explanation of the appellant on the amount of N14m, the subject of the work done by the appellant viz-a-viz the amount received under the contract.
The trial Court and the Lower Court all treated the extra- judicial statements of the 1st Accused, particularly Exhibits 11 14, as confessional statements. Were they confessional in the strict sense The learned counsel for the Respondent in each appeal submitted that Exhibits 11 14 are confessional, and that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive, is sufficient proof of guilt. In Exhibits 11 14 the 1st Accused maintained, as his defence, that he paid the three sums totalling N14,000,000.00 to the PW.3 and Tunji Moronfoye upon his being told by the PW.3 that the
13
Governor of Kwara State wanted the money paid to maintain some local politicians. Inherent in those statements is the suggestion that the monies were not dishonestly misappropriated as suggested by the charges. That is a defence.
A statement made by the accused will not be regarded as “confessional” unless thereby the accused person admits his guilt and/or the commission of the offence he was charged with: Section 28 of the Evidence Act, 2011. A confessional statement proves the guilt, and not the defence or the innocence of the accused person.
For conviction for criminal misappropriation, contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Penal Code, it was necessary to prove or show that the accused person had the necessary intention of causing wrongful gain to himself or another, or of causing wrongful loss to any other person within the con of Section 16 of the Penal Code that defines or states when a thing is said to be done dishonestly. Sections 308 and 16 of the Penal Code must be read together since the dishonest misappropriation is mens – rea of criminal misappropriation: BAKARE & ORS v. THE STATE (1986) ALL N.L.R. 364.
14
I agree with the counsel for the Accused/Appellants that Exhibits 11 14, heavily relied upon by the two Courts below as “confessional statements” made by 1st Accused/DW.1, are not confessional or admissions of the offence of criminal misappropriation. Rather, they are defences offered by the 1st Accused/DW.1 that by the payments of the sum totaling N14,000,000.00 to PW.3 and Tunji Moronfoye, as directed by the Chief Executive of Kwara State, the Accused/Appellants never, at all, intended to dishonestly cause wrongful loss to the Kwara State MDG’s that awarded the contracts for the drilling and provision of 43 motorised boreholes.
Exhibits 11 14, extra-judicial statements of the 1st Accused/DW.1, offering explanations and defences to the charges of criminal misappropriation, were tendered and admitted in evidence through the PW.2. They form part of the prosecution’s case, charge of criminal misappropriation. The effect of Exhibits 11 14 on the prosecution’s case is that the prosecution had thereby offered and placed before the trial Court two versions of the same transaction – one
15
inculpatory and the other (Exhibits 11 14) exculpatory. In PAUL AMEH v. THE STATE (1978) 6 7 SC 27 at 36, this Court made it clear that the prosecution would have failed to prove the guilt of the accused person beyond reasonable doubt if they put before the Court two versions of the same incident or transaction. I am aware that this Court in IGBI v. THE STATE (2000) 2 S.C.N.J. 63 at 73 stated also that when the statement contains both admissions and denials the prosecution is entitled to use the admissions as well. In the IGBI case the accused denied that he participated in the killing of the deceased. He however, admitted that he was present at the scene of crime. The admission had thus corroborated the evidence of the prosecution witnesses that fixed the accused to the scene of crime.
In the instant case Exhibits 11 14 contain outright denials of the suggestion that the Accused dishonestly misappropriated the sums of money the subject of the three charges. They do not admit the criminal misappropriation charged. They are at variance with the whole trend of the prosecution’s case. The contradiction is therefore material
16
and it casts reasonable doubt on the prosecution’s case, which doubt the two Courts below ought to have resolved in favour of the Accused/Appellants: ONUBOGU V. THE STATE (1974) NSCC 358. The two Courts below failed to heed the injunction that when there are material contradictions in the prosecution’s case the Court cannot pick and choose which account to believe and which account to disbelieve. BOY MUKA v. THE STATE (1976) 10 SC 305.
For these Accused/Appellants to be guilty of dishonestly misappropriating the moneys they paid to the PW.3 and Tunji Moronfoye the prosecution must prove or establish who was the owner of the moneys misappropriated. The charges suggested that the moneys misappropriated were entrusted to the Accused/Appellants “for construction of boreholes”. However, undisputed evidence coming from PW.1 and PW.2, including Exhibits 11 14, suggest that the 2nd Accused, Zarab Ventures Ltd (whose Chief Executive Officer is the 1st Accused), was paid part of the agreed contract sum being the consideration payable to it by the Kwara State MDG for drilling and provision of motorised boreholes. This fact thus
17
rebuts the prosecution’s contention the Accused/Appellants were entrusted with the said money for construction of boreholes. The indubitable fact is that the Kwara State MDG contracted the 2nd Accused, as an independent contractor with the necessary expertise, to drill and provide motorised boreholes. I do not think that the ownership of the money paid to the Accused by the Kwara State MDG as consideration for performing the job they were contracted to perform would still remain vested in the said MDG. The said money can also not be said to have been “entrusted” to them “for construction of boreholes”.
On this note let me state, generally, that while entrustment and dishonest misappropriation are the necessary ingredients of the offence of criminal breach of trust; entrustment is not necessarily an element of the offence of criminal misappropriation: BATSARI v. KANO N. A. (1966) NNLR 151.
It is not in our jurisprudence that an owner of a property can be convicted for misappropriating his own property. The Supreme Court of India, in A 1965 SC 1433 at 1436; 1965 CriLJ 431 made a clear statement of the law that an owner of a property cannot be guilty of misappropriation
18
of his own property. The statement accords with common sense and logic. Accordingly I adopt it.
The point I am trying to make is that the ownership of the money paid to the 2nd Accused as consideration for the said 2nd accused to drill and provide motorised boreholes remain the property of the 2nd Accused and it was being managed by the 1st Accused. The two cannot be guilty of misappropriating their own money, at least not in the peculiar facts of this case.
In the event of the Accused/Appellants failing in their contractual obligations to the MDG’s a cause of action for civil breach of contract would have risen for which the remedy for such breach does not lie in criminal proceedings. However, as to what ownership of a property connotes I endorse the statement of Amina Augie, JCA (as she then was) in SURAJU SOMADE & ORS v. OTUNBA AYO JAIYESIMI & ORS (2006) LPELR – 11866 (CA). That is:
Ownership generally connotes the totality of or the bundle of the rights of the owner over and above every other person on a thing. It connotes a complete and total right over property. As Tobi, JSC pointed out in FAGUNWA v. ADIBI (2004) 17 NWLR (Pt. 903)
19
544 at 568 “The property begins with the owner and also ends with him. Unless he transfers his ownership of the property to a third party, he remains the allodial owner”.
My Lords, I cannot see how the Accused, the allodial owners of the money paid as valuable consideration to the them by the Kwara State MDGs for the drilling and provision of motorised boreholes, could be guilty of dishonestly misappropriating their own money by paying over the sums totaling N14,000,000.00 to the PW.3 and Tunji Moronfoye for the purpose of settling some politicians. I agree with the learned counsel for the Accused/Appellants as owners of their money, out of which the N14,000,000.00 was paid out, are entitled, in their discretion, to deal with the money in any lawful or legitimate manner.
Coming, as I do, to the conclusion that the ownership of the money, out of which the Accused/Appellants paid N14,000,000.00 to the PW.3 and Tunji Moronfoye (be it upon cajolery, coercion or brazen extortion by the PW.3) vests exclusively in the Accused/Appellants, particularly the 2nd Accused/Appellant. The second issue canvassed by the
20
Accused/Appellants in their respective briefs is now accordingly spent; and there is now no basis for the order for restitution in the sum of N14,000,000.00 to Kwara State MDG’s as compensation pursuant to Section 78 of the Penal Code ordered by the trial Court and affirmed by the Lower Court.
On the whole the appeal No. SC.960/2017 succeeds. The decision of the Court of Appeal, delivered on 3rd May, 2017 in the Appeal No. CA/IL/C.100/2016, affirming the conviction and sentence (including the order for restitution) imposed on the 1st Accused, is hereby set aside. The 1st Accused/Appellant in respect of each charge and/or all the charges are hereby set aside. I hereby enter an order acquitting and discharging the 1st Accused/Appeal on all the three charges aforestated.
Appeal No. SC.961/2017 succeeds. The decision of the Court of Appeal, delivered on 3rd May, 2017, in the appeal No. CA/IL/C.100/2016, affirming the convictions and sentences (including the order for restitution) imposed on the 2nd Accused/Appellant by the trial High Court, are hereby set aside. The 2nd Accused/Appellant is hereby acquitted and discharged.
The sentences (including the order of restitution) imposed on
21
the 2nd Accused/Appellant in respect of each charge and/or all the charges are hereby set aside. I hereby enter an order acquitting and discharging the 2nd Accused/Appellants on all the three charges aforestated.
SC.960/2017(CONSOLIDATED)