Legalpedia Citation: (2025-29) Legalpedia 28098 (CA)

In the Court of Appeal

GOMBE

Wed Jan 29, 2025

Suit Number: CA/G/22C/2024

CORAM

Ali Abubakar Babandi Gumel of Appeal

Ugochukwu Anthony Ogakwu Justice Court of Appeal

Mohammed Danjuma Justice Court of Appeal

PARTIES

BUKAR MOHAMMED

APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

CRIMINAL LAW, CRIMINAL PROCEDURE, CONSTITUTIONAL LAW, EVIDENCE LAW, HUMAN RIGHTS, APPEAL, FAIR HEARING, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant operated a Bureau De Change in Maiduguri, Borno State. He had an arrangement with the nominal complainant where monies of Chadian traders who came to Nigeria to purchase goods were sent in advance to the Appellant. Upon the arrival of the traders, they would collect the money from the Appellant for their business. Sometime in 2018, the sum of N43,328,000.00 (Forty-Three Million, Three Hundred and Twenty-Eight Thousand Naira) was sent to the Appellant through the usual arrangement. However, upon the arrival of the Chadian traders in Nigeria, the Appellant informed them that there was no money to give to them. All demands and remonstrations to the Appellant yielded no result. A petition was written against the Appellant to the Economic and Financial Crimes Commission. Subsequently, the Appellant was arraigned and charged with obtaining money by false pretences contrary to Section 1(1)(b) and punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. The Prosecution called three witnesses and tendered documentary exhibits in proof of the charge. The Appellant testified in his defense and did not call any other witness.

On the date fixed for adoption of address, the Prosecution applied to amend the charge to criminal breach of trust contrary to Section 311 and punishable under Section 312 of the Penal Code Law, Cap. 102, Laws of Borno State of Nigeria. The amendment was granted, and the Appellant took a fresh plea to the Amended Charge, after which the case was adjourned for address. The lower Court delivered its judgment on 12th September, 2023, and convicted the Appellant on the Amended Charge.

The Appellant, dissatisfied with the decision of the lower Court, appealed against the judgment.

HELD

1. The appeal was dismissed.
2. The decision of the lower Court, Coram Judice: A. B. Kumalia, J., in CHARGE NO. BOHC/MG/CR/74/CT12/2021: FEDERAL REPUBLIC OF NIGERIA vs. BUKAR MOHAMMED delivered on 12th September, 2023, embodying the conviction, sentence, and the terms of the order for restitution made was affirmed.
3. The Court held that the provisions of Section 211 of the Criminal Procedure Code, which allow parties to recall witnesses or call new witnesses after a charge is amended, are not self-executory. The Appellant, who was represented by counsel, did not apply to take advantage of this provision.
4. The Court further held that the offence of criminal breach of trust was established against the Appellant, as all the essential ingredients were proved beyond reasonable doubt by the prosecution.

ISSUES

1. Whether the learned trial Court was right to have adjourned the matter for adoption of addresses after taking the plea of the Appellant on the amended charge without affording him any opportunity to defend the amended charge?
2. Whether in view of the evidence led, the offence of criminal breach of trust has been established against the appellant to warrant his conviction?

RATIONES DECIDENDI

AMENDMENT OF CHARGE – RIGHTS OF AN ACCUSED PERSON AFTER AMENDMENT OF CHARGE

“The above stipulation is one of the inbuilt safeguards designed to ensure that an accused person is not prejudiced and that he is afforded a fair hearing in the course of proceedings when a charge is amended. However, it is not a provision that is self-executory. The Court as an umpire does not descend into the arena to conduct the case for the parties and to know what witness a party may desire to have recalled or any new witness that it may be desirable to call. It is for the party, especially in this instance where the Appellant was represented by a legal practitioner, who was present in Court when the amendment was made; to apply to take advantage of the stipulations of Section 211 of the Criminal Procedure Code if the Appellant so desired.” –Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

RECALLED WITNESSES – RIGHT OF AN ACCUSED TO RECALL WITNESSES AFTER AMENDMENT OF CHARGE

“The law is settled, that at any material time, a charge is amended after the commencement of trial, the accused has every right under the law to seek to recall witnesses who had already testified prior to the amendment for further cross-examination. The accused reserves the right to equally call further witnesses that the Court may deem material or necessary in the light of the amendment in question… In the instant case, the Appellant’s counsel did not deem it expedient to either recall the prosecution witnesses for further cross-examination or call any further witness. Pursuant to the ruling of the trial Court thereby granting the amendment of the charge to the Prosecution. Thus, in my considered opinion, there is no reasonable ground to assume that the Appellant’s right to fair hearing had been breached as a result of the amendment of the charge by the prosecution.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FAILURE TO UTILIZE OPPORTUNITY TO RECALL WITNESSES – EFFECT ON CLAIM OF BREACH OF FAIR HEARING

“…an accused person, more so one represented by counsel who elects not to utilise the opportunity provided in Section 211 cannot complain of breach of fair hearing or any prejudice. It does not lie in his mouth to do so.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PROOF BEYOND REASONABLE DOUBT – MEANING AND STANDARD OF PROOF IN CRIMINAL TRIALS

“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PROOF BEYOND REASONABLE DOUBT – THRESHOLD FOR ESTABLISHING GUILT

“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence- ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CRIMINAL BREACH OF TRUST – ESSENTIAL INGREDIENTS OF THE OFFENCE

“Therefore, the ingredients of the offence of criminal breach of trust are that: (a) the accused person was entrusted with property or dominion over it. (b) that he misappropriated it, converted it to his own use or disposed of the property. (c) that the accused person did so 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 made concerning the trust or that he intentionally allowed some other persons to do so, and. (d) that he acted dishonestly.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COMMERCIAL TRANSACTIONS – WHEN COMMERCIAL TRANSACTIONS CAN ASSUME CRIMINAL CHARACTER

“… it is clearly discernible that although a transaction may be intended by the parties thereto, to be commercial or contractual, it could turn out to be a contract scam by one of the contracting parties. And where that becomes the situation and the complaining party approaches the EFCC, the conduct of the defaulting party can be criminalized, albeit that it started off as a contractual or commercial transaction. In such a situation, where the EFCC preferred a charge or charges arising from the default … before a Court of law… it cannot be argued that the latter should not exercise its criminal jurisdiction over the matter.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CONTRADICTIONS IN EVIDENCE – DISTINCTION BETWEEN MATERIAL CONTRADICTIONS AND MINOR DISCREPANCIES

“From the above testimony there is no material contradiction as to whether PW3 or Hassan Abdullahi, the ‘Oga’ of PW3, entrusted the money to the Appellant and the purpose therefor. If anything, they are mere minor discrepancies and not material contradictions that will cast a slur on the evidence that will lead to upturning the decision of a Court.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVALUATION OF EVIDENCE – PRIMARY DUTY OF THE TRIAL COURT

“It is abecedarian law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial which has the unparalleled advantage of hearing, seeing, and watching the witnesses testify and observing their demeanour.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVALUATION OF EVIDENCE – DEFINITION AND SCOPE

“Evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the findings of facts.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

APPELLATE INTERVENTION – WHEN APPELLATE COURTS WILL INTERFERE WITH EVALUATION OF EVIDENCE

“The law remains that where a trial Court properly discharges its primary duty in the appraisal of the facts and evaluation of the evidence before it, an appellate Court would have no justification and no business to interfere with the evaluation by substituting its own views of the evidence for that of the trial Court. It is only where it is shown on appeal, and the appellate Court is satisfied, that a trial Court failed to properly evaluate the evidence before it, that the appellate Court would have the duty to intervene to re-evaluate or evaluate the evidence for the purpose of ascription of the appropriate probative value and reaching the proper decision.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FINDINGS OF FACT – WHEN APPELLATE COURTS WILL INTERFERE WITH FINDINGS OF FACT

“An appellate Court is loath to interfere with the findings of facts made by a trial Court on credibility of witnesses unless it is shown that such findings are perverse or are not the result of proper evaluation of the evidence.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DISHONEST INTENT – EVIDENCE OF DISHONEST INTENT IN CRIMINAL BREACH OF TRUST

“To further underscore the dishonest intent of the Appellant as borne out by the evidence, the Appellant kept telling them that there was no money only to later come up with the story, which the lower Court held to be untenable and farfetched, that he went to Lagos to change the money, and he was robbed. As stated by the lower Court at page 70 of the Records of Appeal: ‘However, N42 million… is an unimaginably a huge sum, the fact that he even failed to tell Alhaji Hassan even after his return to Maiduguri shows he was not sincere. No one in his right mind will lose such amount and shall be able to keep quiet about it.'” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Criminal Procedure Code, Section 211
• Penal Code Law, Cap. 102, Laws of Borno State of Nigeria, Sections 311 and 312
• Advance Fee Fraud and Other Fraud Related Offences Act, 2006, Sections 1(1)(b) and 1(3)
• Constitution of the Federal Republic of Nigeria, 1999 (as amended)

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