CRIMINAL LAW AND PROCEDURE – CRIMINAL BREACH OF TRUST  – Requirements of the law for a criminal breach of trust to occur and when transactions involved in a case will be held to be based on contractual agreement where there is no evidence of criminal breach of trust


“…All the prosecution witnesses testified that the transactions between the Ministry of Culture & Tourism, Rivers State and the Appellant were based on contract between the parties and that the contract had wholly failed because of the Appellant’s non-performance. The second comment under Section 312 of the Notes on the Penal Code law by S. S Richardson, states as follows:- “(2) Breach of trust is not the same thing as breach of contract. In all the cases given in the illustration to Section 311, in which a person is said to have committed criminal breach of trust, the property misappropriated is the property of another person or property of which the offender was not the beneficial owner.” For a criminal breach of trust to occur, there must be evidence of trust. A trust arises as a result of a 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. It is a property interest held by one person, called the trustee at the request of another person called the settlor for the benefit of a third party called the beneficiary. For the trust to be valid, it must involve specific property, reflect the settlor’s intent and be created for a lawful purpose. A trust exists when property is to be administered by one person on behalf of another for some purpose other than the trustee’s benefit. Where the property is administered for the benefit of the person holding it, it ceases to bear the meaning of trust. In the instant case, the N3.5 million naira paid to the Appellant include cost for logistics and procurement of the giraffe and the Appellant’s profit since the giraffe was not a commodity that was on display and could be bought for the N3.5 million. The Appellant testified that the animal was not available in Nigeria and that its procurement was possible only in Niger Republic or Chad. Was he expected to trek to these countries to procure the calf giraffe with the money advanced to him. Clearly the intention of the Ministry of Culture & Tourism, Rivers State was for the Appellant to manage the money in such a way as to procure the calf giraffe. It was not its business to dictate how the giraffe was to be procured. There is no evidence that shows the beneficiary of the money that was given to the Appellant to buy the giraffe was a person other than the Appellant. A trust involves three elements: – 1. A trustee, who holds the trust property and is subject to deal with it for the benefit of one or more others. 2. One or more beneficiaries to whom and for whose benefit the trustee owes duties with respect to the trust property. 3. Trust property, which is held by the trustee for the beneficiaries. In the instant case there are no beneficiaries other than the Appellant, as the money was deposited in the Appellant’s account to be administered by him. One worrisome procedure adopted at the Chief Magistrate’s Court was the charge against the Appellant for criminal breach of trust and cheating the Ministry of Culture & Tourism in the sum of N3.5 million, inspite of the fact that the nominal complainant clearly stated in evidence that they had recovered the sum of N995,000.00 from the N3.5 Million naira which was paid into the Appellant’s account. The only outstanding balance against the Appellant was in the region of N2,505,000.00. The Appellant was therefore convicted on a defective charge, which stipulated that he committed criminal breach of trust and cheating his victim in the sum of N3.5 million. Although the error is not so material as to vitiate the proceedings in this case, it shows how desperate the trial Court had become in finding reasons to convict the Appellant. Having considered the evidence at the trial Court, I am of the firm view that the transactions involved in this case were based on contractual agreement, as there is no evidence of criminal breach of trust. In Onagoruwa Vs State (1993) LPELR – 43456 (CA) at pages 67- 68 Paras, F- B, Niki Tobi, JCA (as he then was) said:- “There is no law known to me 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, it can be a breach of a contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish.” per GALUMJE, J.S.C. in THEOPHILUS KURE v. COMMISSIONER OF POLICE (2020-LCER-39163-SC) at p. 22 – p. 25

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