Ingredients of Criminal Breach of Trust Under Section 311 of the Penal Code

IIn the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 1st day of July, 2022

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro

Abdu Aboki

Ibrahim Mohammed Musa Saulawa

Tijjani Abubakar

Justices, Supreme Court

SC/CR/611/2020

Between

1. ENGR. UMAR SAIDU BAMALLI APPELLANT

                      And

1.    FEDERAL REPUBLIC OF NIGERIA RESPONDENT

(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)

Facts

The Appellant was arraigned before the High Court of Plateau State on an amended four-count Charge, relating to the offences of criminal breach of trust contrary to Section 311 of the Penal Code and punishable under Section 312 thereto; and official corruption contrary to Section 8(b)(ii) of the Corrupt Independent Practices and other Offences (ICPC) Act 2004 and punishable under Section 8(b)(ii) thereunder. The Appellant was accused of dishonestly misappropriating the sum of N32 million granted to the Institute for payment of staff promotion arrears in 2012, in his capacity as the Director General of the Nigerian Institute of Mining and Geosciences. He was also accused of granting the approval of an inflated sum of money as the amount meant for a contract for the printing of security and non-security documents, and fraudulently converting the same to his own use. 

The Appellant pleaded not guilty to each of the four counts and the trial proceeded with the Appellant and Respondent calling witnesses and tendering various exhibits in proof of their respective cases. At the end of the trial, the trial court convicted the Appellant on counts 1, 2 and 4 and sentenced him to seven years imprisonment each on counts 1 and 2; and 5 years imprisonment on count 4. Dissatisfied, the Appellant appealed to the Court of Appeal, which court dismissed the appeal and upheld his conviction and sentence. The Appellant filed a further appeal to the Supreme Court.

 Issues for Determination

The Apex Court considered the following issues in its determination of the appeal:

1. Whether the trial, conviction and sentence of the Appellant are altogether a nullity, for failure of the prosecution to first obtain the leave of the trial court before the Charge was filed, as mandated by Section 185(b) of the Criminal Procedure Law.

2. Whether the competence of issues 1 and 2 in the Appellant’s Brief of Argument raised suo motu by the learned Justices of the Court of Appeal without calling parties to address them on same, does not amount to a breach of the Appellant’s right to fair hearing. 

3. Whether from the totality of the evidence adduced by the Respondent on record, the court below was right when it held that the same established the guilt of the Appellant for counts 1, 2 and 4 beyond reasonable doubt. 

Arguments

On the first issue, counsel for the Appellant argued that the prosecution failed to first obtain the leave of the trial court before the Amended Charge was filed, as prescribed in Section 185 of the Criminal Procedure Code, and for this reason, the trial, conviction and sentence of the Appellant are altogether a nullity. 

He argued with respect to the second issue, that the issue regarding the competence or otherwise of issues 1 and 2 of the Appellant’s Brief of Argument before the Court of Appeal was raised suo motu by the Court of Appeal without calling on the parties to address it on the same, and it thus, amounts to violation of the Appellant’s right to fair hearing under Section 36(1) of the 1999 Constitution.  He cited MABAMIJE v OTTO (2016) NG SC 75.

On the third issue, counsel submitted that the prosecution did not prove the guilt of the Appellant to warrant the conclusion drawn by the lower court that he was rightly convicted and sentenced by the trial court on counts 1, 2 and 4. On the whole, he submitted that the two courts below did not properly evaluate and consider the evidence tendered before it, in arriving at their respective conclusion that the prosecution proved the ingredients of the offences for which the Appellant was convicted, beyond reasonable doubt. On this premise, counsel for the Appellant urged the Court to set aside the judgement of the court below, and accordingly discharge and acquit the Appellant.

Arguing contrarily, counsel for the Respondent submitted on the first issue that the Charge was initiated by due process of law, upon the fulfilment of the condition precedent for initiating the Charge. He argued that the Appellant failed to show which of the requirements for the initiation of the criminal proceedings, was breached.

On the second issue, counsel submitted that the issues in question were not issues upon which the judgement of the court below was predicated, and they were issues addressed in passing which had no bearing on the resolution of the matter. He submitted further that the Appellant failed to show that the issue purportedly raised suo motu by the court below had affected him, and caused him miscarriage of justice. 

On the third issue, counsel for the Respondent argued that from the totality of the evidence adduced and exhibits tendered at the trial, the prosecution established the ingredients of the offences in counts one, two and four, thereby linking the Appellant with the commission of the offences of Criminal Breach of Trust. He cited NWATURUOCHA v THE STATE (2011) 45 NSCQR at 300-301 and AFOLALU v THE STATE (2010) 6-7 MJSC 187. 

Court’s Judgement and Rationale 

Deciding the first issue, the Supreme Court held that by virtue of Section 174(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 13(2) of the EFCC Act and Section 185(1) of the Criminal Procedure Code, Laws of Plateau State, the trial court has the jurisdictional competence and power to grant or refuse leave to the prosecution to arraign and institute a Charge against the Defendant. However, like in all cases of exercise of discretionary power, the discretion must be exercised not only judicially, but also judiciously. The court held that it was evident on the face of the record that the trial court had recorded having dealt with an application ex-parte regarding the Charge on 7th May, 2018. The said ex-parte application which was brought by the prosecution sought leave to prefer a Charge against the Appellant, and it was duly supported by the necessary processes. The court concluded there was no doubt that the Charge in question was initiated at the trial court by due process of law, and upon the fulfilment of the condition precedent for initiating the Charge. The Appellant had failed to advance any cogent reason, to the effect that any of the requirements for initiation of the criminal proceedings was breached by the Respondent.

On the 2nd issue, the court held that the law is indeed, well settled, that where a court deems it expedient to unilaterally raise an issue suo motu, then it becomes imperative for the court to accord an opportunity to the parties to address it thereupon. Though the Court of Appeal struck out issues 1 and 2, it still went ahead to determine the Appellant’s appeal on the merits. Thus, it would be a gross misconception for the Appellant to allege that the finding of the court below which resulted in the striking out of the said issues 1 and 2, amounted to raising an issue suo motu.

Regarding the third issue, their Lordships held that the elements of the offence of Criminal Breach of Trust under Section 311 of the Penal Code are: (a) That the accused person was entrusted with property or dominion over it; (b) That the accused misappropriated, converted or disposed of the said property; (c) That the accused did so in violation of any direction of law prescribing the mode in which such trust was to be discharged, or any legal contract express or implied which he had made concerning the trust, or that he intentionally allowed some persons to do so; and (d) That he acted dishonestly. The court placed reliance on the cases of UZOAGBA vs COP (2012) LPELR – 15525; (2014) 5 NWLR (Pt. 1401) 441; (2012) LPELR-15525 (SC). The prosecution is under a duty to prove these ingredients beyond reasonable doubt. 

In this instance, in discharging this burden, the prosecution had called witnesses and adduced evidence which proved beyond reasonable doubt that the Appellant, as the DG/CEO of Nigerian Institute of Mining and Geosciences, had been entrusted with money meant for promotion arrears, and had dishonestly diverted it for other use without authority. The evidence adduced by the prosecution also established that the Appellant knew that there was no promotion that year; hence, the purpose for the disbursement of the money was defeated; yet, he went ahead to approve the illegal disbursement of the money and used it for other purposes without authority. The court held further that the evidence on record also showed that, in order to perpetrate this crime, the Appellant facilitated the payment of the said money to various cadres of staff as overtime allowance, after which the said staff were made to return certain amounts to the procurement officer (2nd accused person) in connivance with the Appellant, and the money was in the end, used for other purposes by the Appellant. The court also found that there was direct oral evidence, as well as documentary evidence on record which established that the Appellant illegally approved disbursement of the sum of N9.5million from the promotion arrears funds as money meant for a contract for the printing of security and non-security documents which was in fact a sham contract, and the Appellant gained a benefit of N5million therefrom. There is no doubt that based on the totality of the evidence adduced by the Respondent (Prosecution) on record, the court below was absolutely right when it held in the vexed judgement that the said evidence was sufficient to establish the guilt of the Appellant in counts 1, 2 and 4 of the Charge, beyond reasonable doubt. 

Appeal Dismissed.

Representation

Abdulaziz Ibrahim Nasir Saidu with M.U. Bunza and Samson Okpetu for the Appellant.

Sir Steve Odiase with Bamidele Akhwmoch for the Respondent.

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