CORAM

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SIR BIOBELE ABRAHAM GEORGEWILL,JUSTICE, COURT OF APPEAL

ISAH BATURE GAFAI ,JUSTICE, COURT OF APPEAL

NEHIZENA IDEMUDIA AFOLABI ,JUSTICE, COURT OF APPEAL

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PARTIES

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FEDERAL REPUBLIC OF NIGERIA 

APPELLANTS 

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PETER SHIKAAN

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW, EVIDENCE LAW, ADVANCE FEE FRAUD, FALSE PRETENSE, CRIMINAL BREACH OF TRUST, BURDEN OF PROOF, CRIMINAL APPEAL, PRACTICE AND PROCEDURE, CONTRACT LAW, PENAL CODE

 

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SUMMARY OF FACTS

The Appellant (Federal Republic of Nigeria) filed a two-count charge against the Respondent (Peter Shikaan) dated 8th February 2021 for: (1) Obtaining Money by False Pretense under Section 1(2) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006, and (2) Criminal Breach of Trust under Section 312 of the Penal Code (Cap 124) Laws of Benue State 2004.

The facts indicate that the nominal complainant, Mr. Sunday Onaji, a businessman engaged in farming and agricultural produce trading, was introduced to the Respondent by one Martin. The Respondent presented himself as a producer and seller of Paddy Rice and took the complainant to inspect Paddy Rice at his alleged warehouse along University of Agriculture Road, Makurdi. They agreed on ten metric tons at N110,000 per ton, totaling N1,100,000. On 24th January 2018, the complainant transferred N1,100,000 into the Respondent’s First Bank Account No. 3035672981.

After payment, the Respondent pretended to make phone calls inside the bank and subsequently disappeared, leaving the complainant stranded. When the complainant returned to collect the rice with a truck, he found strange faces who claimed not to know the Respondent and was told the Respondent had relocated to an unknown destination with his phone lines switched off. Investigation revealed the Respondent fraudulently obtained the money under false pretense of supplying rice he did not have. The Respondent was arrested on 19th December 2018, admitted receiving the money and failing to supply the rice.

The trial court discharged and acquitted the Respondent on 2nd February 2024, finding that the prosecution failed to prove both counts beyond reasonable doubt, holding that the transaction was civil in nature rather than criminal.

 

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HELD

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The appeal was dismissed. The Court of Appeal upheld the trial court’s decision, finding that the prosecution failed to prove the charges beyond reasonable doubt. The court held that the transaction between the parties was contractual in nature and that a breach of contract cannot give rise to criminal liability in the absence of criminal intent. The court found that the Respondent was in a position to deliver the rice and that his failure to do so constituted a breach of contract rather than a criminal offense. The court distinguished between civil breach of contract and criminal conduct, emphasizing that mens rea (criminal intent) must be proven beyond reasonable doubt.

 

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ISSUES

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1. Whether the learned trial judge was right in discharging and acquitting the Defendant on Count one of the charge, on the ground that the Prosecution did not prove the said count beyond reasonable doubt.?

2. Whether the learned trial judge misconceived the law when he held that the transaction between the parties was in fact civil in nature.?

3. Whether the misconceived transaction by the learned trial Judge about it being civil in nature, occasioned a miscarriage of justice.?

4. Whether the learned trial judge erred in law when his Lordship mixed up issues of Criminal Breach of Trust with that of Obtaining by False Pretense, by referring it to be an act of Conspiracy.?

 

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RATIONES DECIDENDI

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BURDEN OF PROOF IN CRIMINAL TRIALS – PROSECUTION’S DUTY:

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“It is settled beyond citing of authorities now that, in criminal trials, the burden of proof is on the prosecution from start to finish, the burden does not oscillate like in civil cases. The duty of the prosecution in any criminal matter is to prove the charges against an accused person beyond reasonable doubt. This is a settled position of the law. The onus of proving the guilt of any person accused of the commission of a crime lies on the prosecution and that the burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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STANDARD OF PROOF – BEYOND REASONABLE DOUBT:

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“The standard required by law is proof beyond reasonable doubt and that does not imply that the proof should be beyond all shadow of doubt. The law requires that the ingredient of the offence must be proved by cogent and credible evidence. It is settled law that an offence can only be established if cogent, credible and reliable evidence is led to prove the following ingredients of the offence.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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ELEMENTS OF OBTAINING BY FALSE PRETENSE – SEVEN REQUIREMENTS:

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“The offence of obtaining by false pretence created by Section 1 (2) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, is committed upon the existence of these facts: That a pretence has been made by way of representation; That the representation was from the accused person; That the representation was made to the person defrauded; That the accused knows or has reason to know that the representation is false, or does not believe in truth of the representation; That the accused made the false representation with intent to defraud the victim to whom the false representation was made; That due to the false representation, the accused induced the victim to deliver or transfer some property or interest in the property, to the accused or some other person; That the property or the interest transferred is capable of being stolen.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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DISTINCTION BETWEEN CRIMINAL CONDUCT AND BREACH OF CONTRACT – ABILITY TO PERFORM:

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“To my comprehension as the facts in this appeal revealed the Respondent was in a position to deliver the 10 Tons of Paddy Rice. The agreement to deliver the rice to my mind was not hoax, swindled fraudulently to induce the nominal complainant to transfer the said one million one hundred thousand naira to the Respondent. It appears to me as maintained by the Respondent throughout his evidence at the trail that he was in a position to deliver the said Rice to the Nominal complainant.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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CRIMINAL INTENT AND DECEPTION – DISTINGUISHING GENUINE ABILITY FROM FRAUD:

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“By the evidence in this appeal, the Respondent cannot be said to deceive the nominal complainant by pretending to have the ability that he does not really have. In clearly terms, he is not a con. The mens rea which is conceived and hidden in the mind of the Respondent which is very difficult to know but displayed by the actus rues should be of out mostly considered. When the action or conduct is found by evidence to be a treachery to make, obtain or procure money, by the pretence the respondent can rightly be said to deceive his victim by pretending to have the ability that he does not really have.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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BREACH OF CONTRACT VERSUS CRIMINAL LIABILITY – JURISDICTIONAL DISTINCTION:

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“There is no law known to our jurisprudence where a breach of agreement between two parties which has no element of criminality can result in a criminal charge and subsequent conviction. At best can be a breach of a contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish. To my firm comprehension, and with the available evidence adduced in this appeal, the findings of the trial cannot be faulted in law. In law, a breach of agreement between two parties is without criminal element.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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ELEMENTS OF CRIMINAL BREACH OF TRUST – FOUR REQUIREMENTS:

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“For the prosecution to succeed in establishing the offence of criminal breach of trust, it must prove the following ingredients; That the accused person was entrusted with property or dominion over it. That he misappropriated it converted it to his own use or disposed of the said property. 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 expressed or implied which he had made concerning the trust or that he intentionally allowed some other persons to misappropriate, convert or dispose of the property in violation of the mode of execution of the trust. That the accused person acted dishonestly.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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NATURE OF TRUST RELATIONSHIP – FIDUCIARY DUTIES:

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“Now for criminal breach of trust to occur, there must be evidence of trust. A trust occurs as a result of manifestation to create it. It is a fiduciary relationship regarding property and charging the person with title to the property with equitable duties to deal with it for another’s benefit.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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CONTRACTUAL RELATIONSHIP VERSUS TRUST – DISTINGUISHING LEGAL FOUNDATIONS:

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“In this appeal, all the prosecution adduced in his evidence was clearly that the transactions between the nominal complainant and the Respondent were based on contract between the parties and that the contract had wholly failed because of the Respondent’s non-performance. Clearly, the transactions involved in this appeal were based on contractual agreement, as there is no evidence of criminal breach. A breach of contract cannot give rise to criminal breach of trust as far as the foundation was contract irrespective of the intention of any of the parties.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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REFORMULATION OF ISSUES BY APPELLATE COURT – JUDICIAL DISCRETION:

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“Issues 2, 3, and 4 as formulated by the Appellant appears identical and an offshoot of each other. In the circumstance, for precision and conciseness, I will adopt and reformulate issues one for the determination. It is rather a triable argument or merely frivolous for the appellant to contend that the appellate Court, in considering an appeal before it has no discretion to either adopt the issues formulated for determination by the parties or alternatively formulate such issue(s) it believes would adequately determine the grievance in the appeal.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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FUNDAMENTAL ISSUE IN CRIMINAL APPEALS – PROOF BEYOND REASONABLE DOUBT:

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“This is a criminal appeal, and it is trite that in criminal cases, there is a single fundamental issue which is whether the prosecution, now the Appellant proved its case beyond reasonable doubt to make the verdict handed down by the lower court perverse. In doing so, evaluation of evidence is a basic duty and for expediency, it is better done at once to avoid repetition.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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REQUIREMENT FOR ALL ESSENTIAL ELEMENTS – COMPLETE PROOF NECESSARY:

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“The offence charged cannot be said to have been proved beyond reasonable doubt when all the essential ingredients or elements of the offence have not been proved beyond reasonable doubt. Every ingredient of the offence charged must be established by the prosecution in order to succeed.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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TRIAL COURT’S PRIMARY DUTY – PROPER EVIDENCE EVALUATION:

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“What the trial judge did cannot be faulted in law and I cannot fault it upon scrutiny concerning all the evidence adduced in this appeal. The trial judge did not avoid doing its primary duty of proper evaluation. The judgment cannot be said to be perverse upon scrutiny. In the circumstance, the Appellant failed to prove the first count of the charge against the Respondent beyond reasonable doubt.” – Per NEHIZENA IDEMUDIA AFOLABI, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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• Advance Fee Fraud and Other Fraud Related Offences Act 2006 (Sections 1(2), 1(3))

• Penal Code (Cap 124) Laws of Benue State 2004 (Sections 312, 313)

• Evidence Act 2011

 

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