Supreme Court agrees with Leslie Olutayo Nylander SAN; that a person cannot be convicted for both cheating and criminal breach of trust based on the same set of facts in one transaction

THEOPHILUS KURE v. COMMISSIONER OF POLICE
SC.317/2018

Appearances: Leslie Olutayo Nylander SAN with Adamu and Wayo Esq. for the Appellant.

Mr. E. E. Ekhasemomhe with Iyaji for the Respondent.

Appellant’s  Counsel, in his brief settled by L. O. Nylander and Muhammad Abu argued in Issue 1 that one could not be convicted of criminal breach of trust and cheating under the criminal code based on the same factual situation in respect of one transaction in the same proceedings. Learned Senior Counsel further argued: “However, and this is the point, that ….. It is a contradiction in terms to convict for both. Prosecution cannot on one hand be saying the money was obtained by the Appellant from the Ministry of Culture and Tourism, Rivers State unlawfully or illegally by deceit and inducement and on the other hand that the money was entrusted to him lawfully for a specific purpose”.

Mr. E. E. Ekhasemomhe had argued in his Respondent’s brief that the conviction should stand.

The Apex Court per Galumje JSC held:

The ingredients leading to the offences of cheating and criminal breach of trust are not the same. The definition of the offence of cheating, relevant to this case is as contained in Section 320(a) of the Penal Code. This section provides as follows: –

“320 – Whoever by deceiving any person
(a) Fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property.”

The punishment section under which the Appellant was charged is Section 322 of the Penal Code.

On the other hand the offence of criminal breach of trust is defined under Section 311 of the Penal Code as follows:

“Whoever being in any manner entrusted with property or with any dominion over property, dishonesty misappropriates or converts to his own use that property or dishonesty uses or disposes of that property 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 has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.”

The offence of criminal breach of trust is punishable under Section 312 of the Penal Code. For the prosecution to succeed in establishing the offence of criminal breach of trust, it must prove the following ingredients:-

1. That the Accused Person was entrusted with property or dominion over it.
2. That he misappropriated it, converted it t his own use or disposed of the said property.
3. 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. See UZOGBA v. C.O.P (20014) 5 NWLR (Pt. 1401) 441; FEDERAL REPUBLIC OF NIGERIA v. MARTINS (2012) 14 NWLR (Pt. 1320) 287.

While the offence of cheating under Section 322 of the Penal Code involves deceit and or fraudulent and dishonest inducement of the person so deceived to part or deliver the property in issue to any person, the offence of criminal breach of trust does not involve deceit and/or fraudulent and dishonest inducement of the settlor to deliver the property for which the trust is created, to the trustee. For a trust to be valid, it must involve specific property, reflect the settlor’s intent and be created for a lawful purpose. Where a property obtained deceitfully or through fraudulent and dishonest inducement, such transaction cannot amount to a trust. Where there is no trust, breach of such trust cannot be founded by any tribunal or Court. By the different ingredients that lead to the commission of the two offences with which the Appellant was charged and convicted, there is no way that the Appellant could be properly convicted for the two offences, involving the same sets of facts of delivering money to the Appellant.

Appeal allowed.

With this case Supreme Court has clarified and expanded Nigerian law and hopefully put a stop to the common practice of convicting persons for both offences based on one factual situation in respect of one transaction