Usman Mohammed Mafa V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE. J.C.A. (Delivering the Leading Judgment)

This appeal is against the Judgment of the Borno State High Court delivered by A. G. Mshelia on the 13th day of December, 2002.

The appellant was arraigned before High Court No, 3 Maiduguri on a two count charge of criminal breach of trust punishable under section 315 and theft under section 288 of the Penal Code (as amended) respectively.

The prosecution as well as defence called witnesses and tendered documents in proof of their respective cases.

The appellant was discharged and acquitted for the offence of theft under section 288 of the penal code but was however convicted for criminal breach of trust contrary to section 311 and punishable under section 312 of the Penal Code.

The appellant’s conviction was to a five-year term of imprisonment or an alternative fine of N500,000.00 (Five hundred thousand naira). In addition the appellant was ordered to pay compensation of the sum N2,725,000.00 (Two million seven hundred and twenty five thousand naira) to be shared to Customers of Al-Hayah Community Bank Ltd. (distressed and liquidated). The appellant not satisfied with the decision of the trial court appealed to this court upon six grounds of appeal.

ISSUES FOR DETERMINATION

1. Whether the trial judge was right in convicting the appellant for the offence of criminal breach of trust when the essential elements for the offence have not been established.
2. Whether the trial judge was right in sentencing the appellant to a fine of N500,000.00 (Five hundred thousand naira) or five years imprisonment.
3. Whether the trial judge was right in ordering the sum of N2,725,000,00 (Two million seven hundred and twenty five thousand naira) as compensation to be distributed to customers of Al-Hayah Community Bank Ltd when there is no evidence that the said sum (which in any case was recovered) belonged to customers of the said Al-Hayah Community Bank Ltd.
4. Whether the trial court properly assessed and evaluated the evidence of the appellant.

ON ISSUE NO.1

Whether the trial Judge was right in convicting the Appellant for the offence of criminal breach of trust when the essential elements for the offence were not established, learned Appellant’s Counsel submitted that the learned trial Judge erred when she held that the evidence of PW1, PW2 and Exhibit H as well as the evidence of Mai Abdullahi all point to the fact that the Appellant converted the money to his own use when there was no such evidence to support the finding. That contrary to the finding of the trial Judge, Exhibits B and H in particular point to how the said sum of N2,725,000.00 (Two million seven hundred and twenty five thousand naira) only was removed and for what purpose. Counsel further submitted that the evidence of the defence shows how and where the missing money was traced to. That this piece of evidence has not been challenged nor has it been controverted. He then referred to the evidence of DW1 page 37 lines 1 – 5 and DW2 page 42 lines 1- 24.

Counsel again submitted that the gist of the offence of criminal breach of trust does not lie in the actual loss, but in the intention to cause that loss. That a dishonest intention is an essential ingredient of criminal breach of trust under Section 312 of the Penal Code. See OKONKWO V. C.O.P. (1985) HCNLR Pg. 1277. That conversion only becomes fraudulent when there is intent to permanently deprive the owner of a thing, the use of it. He cited the case of OKOROJI V. THE STATE (2002) 5 NWLR (PT.759) 21 @ 49 PARAS G – H.

Learned Counsel further stated that from the evidence adduced by the prosecution as well as the defence, there is nothing on record to show that the Appellant intended to cause wrongful gain to himself or wrongful loss to Al-Hayah community Bank Limited. That every breach of trust gives rise to a suit for damages, but that it is only when there is evidence of a mental act of fraudulent misappropriation that the commission of embezzlement of any sum of money becomes a penal offence punishable as criminal breach of trust, He cited the authority in Ratanlal on the Laws of Crime page 153 cited by Hurley C.J. in Okonkwo v. C.O.P. (supra). In a further submission by learned Counsel for the Appellant he stated that the trial Judges finding of guilt which was based on the inference that the Appellant gave out loan of more than N5,000.00 (Five thousand naira) contrary to instructions of the Board thereby caused wrongful gain to himself, and wrongful loss to customers cannot and did not constitute evidence even circumstantial to warrant the Appellant’s conviction for criminal breach of trust. See page 69 lines 15 – 22 of the record.

Counsel again submitted that for circumstantial evidence to warrant a conviction, a whole series of contemporaneous facts and surrounding circumstances of an event must be considered together in the circumstances of the case in order to fix the Appellant irresistibility with the commission of the offence of criminal breach of trust. See LORTIM v. THE STATE (1997) 2 NWLR (pt.49o) 711 @ 725 PARAS C – D. That there was no evidence that the Appellant was given any instructions as to the limit of amount he could give as loan since no resolution of the Board to that effect was tendered. He then concluded that even if the Appellant had given out loans of more than N500,000.00 (Five hundred thousand naira) without instructions, it is not an indication of dishonest intention for the purposes of conviction for the offence of criminal breach of trust. He then urged the Court on that issue to allow the appeal and set aside the conviction of the Appellant for criminal breach of trust.

ON ISSUE NO. 2

Whether the trial Judge was right in sentencing the Appellant to a term of 5 years or N500,000.00 (Five hundred thousand naira), learned counsel submitted that by the combined provisions of Sections 22 and 74 of the Criminal Procedure Code Law (Cap 42) and the Penal Code Law (Cap 102) respectively, (Laws of Borno State)’ a Judge cannot impose a sentence of imprisonment of more than two years where the fine exceeds N2,000.00 (Two thousand naira). He further reiterated the fact that the alternative fine of N500,000.00 (Five hundred thousand naira) was not the result of a judicial and judicious exercise of the Court’s discretion as the fine was not only excessive and therefore contrary to Section 22 of the Penal Code but punitive. He then referred to Section 72 of the Penal Code which reads thus: