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(2020) LPELR-49378(SC)

In The Supreme Court of Nigeria

On Friday, the 24th day of January, 2020


Before Their Lordships

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria


AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria

UWANI MUSA ABBA AJI Justice of The Supreme Court of Nigeria


THEOPHILUS KURE - Appellant(s)



Other Citations

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This appeal borders on Criminal Law and Procedure.

This is an appeal against the decision of the Court of Appeal sitting in Kaduna.

The Appellant a "veterinarian" entered into a contract with the ministry of culture and tourism, Rivers State, through one Mrs. Sokari Davies, the Director of Tourism, to supply a calf giraffe in the sum of N3.5 Million. The said sum was paid on 1/2/2013 into the account of the Appellant domiciled at the United Bank for Africa (UBA). Appellant promised to deliver the calf giraffe in two weeks. Several months passed, no delivery was made despite repeated demands made to the Appellant to deliver. Mrs. Sokari Davies, who stood in for the ministry of culture and tourism, Rivers State, decided to check whether the money she deposited in the Appellant's account was still intact. To her surprise, the Appellant had been making piecemeal withdrawals leaving a balance of One Million Naira (N1,000,000.00) in the account. She now went to Court, sought for and obtained an order ex-parte, which placed lien on the Appellant's account, and by the time the order was served on the bank there was further withdrawal from the said account, which brought the balance to the credit of the Appellant down to Nine hundred and Ninety- five Thousand Naira (N995,000.00). This balance was subsequently transferred to the account of Mrs. Sokari Davies. Mrs. Sokari Davies who testified at the trial Court as PW1, reported the transaction to the police in Kaduna, where the Appellant lived. As a result of the report, the Appellant was arrested and arraigned before the Chief Magistrate's Court for the offences of cheating and criminal breach of trust contrary to Sections 312 and 322 of the Penal Code.

The Appellant was arraigned before a Chief Magistrate Court, Kaduna on a First Information Report (FIR) on allegation of criminal breach of trust and cheating contrary to Sections 312 and 322 of the Penal Code. After the First Information Report was read and explained to the Appellant, he pleaded not guilty. In order to prove its case, the prosecution called three witnesses and tendered in evidence two written statements of the Appellant and a printout statement of UBA Account of the Appellant. These documents were admitted in evidence and marked Exhibits A1, A2, and B respectively. At the close of prosecution's case, the learned Chief Magistrate ruled that the prosecution had established a prima facie case of cheating and criminal breach of trust against the Appellant. The Appellant pleaded not guilty to the two counts charge that was framed by the Chief Magistrate and elected to give evidence in his defence. After his evidence in chief, the Appellant made several attempts to call another witness without success, and so he finally closed his case on the 5th of October, 2015. In a reserved judgment, delivered on the 23rd of October, 2015, the trial Chief Magistrate Found the Appellant guilty as charged and sentenced him to a fine of N5,000.00 or 1 year imprisonment for the offence of cheating and a fine of N8,000.00 or 2 years imprisonment for criminal breach of trust. In addition, the Appellant was ordered to pay the sum of N2,505,000.00 as compensation to the nominal complainant, being the balance of the N3.5 Million paid to the Appellant by the nominal complainant for male calf giraffe which he failed to deliver to her, since the nominal; complainant had already retrieved the sum of N995,000.00 from the bank account of the convict at UBA Plc.

The Appellant was not happy with the decision of the Chief Magistrate. Being aggrieved, he appealed to the High Court and submitted two grounds of appeal. The appeal was heard and in a unanimous decision, the High Court (Coram M. L Bello and B. F Zubairu JJ) dismissed the appeal and affirmed the decision of the Chief Magistrate. Once again, the Appellant was thoroughly dissatisfied with the decision of the High Court, and therefore appealed to the Court of Appeal, Kaduna Division on three grounds of appeal and submitted two issues for determination of the appeal. The Appeal was heard and in a reserved and considered judgment delivered on the 30th day of October, 2017, the Appellant's appeal was dismissed for lack of merit. Further dissatisfied, the Appellant appealed to the Supreme Court.

The Court determined the appeal on these issues couched as follows:
1. Whether the lower Court was right to have upheld the conviction of the Appellant by the lower Courts for both criminal breach of trust and cheating based on the same factual situation in respect of one transaction in the same proceedings.
2. Whether the lower Court was right to have relied on the judgment of the trial Court to uphold the conviction and sentence of the Appellant for criminal breach of trust and cheating having regard to the evidence.

On the whole, the Court found merit in the appeal and accordingly allowed same. The conviction and sentence passed on the Appellant as affirmed by the Court of Appeal was set aside. The Appellant was therefore acquitted and discharged.

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