On whether breach of agreement per se is an offence that can result in criminal charge: An insight into the Supreme Court laudable decision in Theophilus Kure V. Commissioner Of Police

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On whether breach of agreement per se is an offence that can result in criminal charge: An insight into the Supreme Court laudable decision in THEOPHILUS KURE V. COMMISSIONER OF POLICE [2020] 9 NWLR PT.1729 PG. 296-307. Courtesy: Moruff O. Balogun Esq.


Summary of Facts:
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). The appellant promised to deliver the calf giraffe in two weeks. Several months passed, and the appellant did not deliver despite repeated demands made on him to deliver. Mrs. Sokari Davies 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 NI,000,000.00 (One million Naira) in the account. She then approached the court, sought and obtained an order, ex-parte, which placed a lien on the appellant’s account, and by the time the order was served on the bank there was further withdrawals 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). That 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 police arrested the appellant and arraigned him 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 court found the appellant guilty as charged and sentenced him to a fine of N5,000 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. The court also ordered him to pay the sum of N2,505,000.00 to the nominal complainant representing the balance of N3.5 m for the male calf giraffe, which he failed to deliver.
The appellant was not happy with the decision of the Chief Magistrate, and he appealed to the High Court. The High Court dismissed his appeal and affirmed the decision of the Chief Magistrate. Still dissatisfied, he appealed to the Court of Appeal which dismissed the appeal for lacking in merit. The appellant further appealed to the Supreme Court.

Held : Unanimously allowing the appeal, and discharging and acquitting the appellant.

On whether breach of agreement per se is an offence that can result in criminal charge –
There is no known law where a breach of an 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. In the instant case, the N3.5million naira was clearly a consideration for the contract between the parties which had wholly collapsed. The remedy laid in civil litigation.
Per KEKERE-EKUN, J.S.C. at pages 323-324,paras. H-B:

The crux of this appeal is whether the facts narrated above gave rise to a civil claim or whether the commission of criminal offences was disclosed. My learned brother has given a thorough consideration of this issue in the lead judgment. I am in complete agreement with him that what the facts disclose is a civil complaint of breach of contract. The sum of N3.5m was paid to the appellant in furtherance of the contract between the parties. The failure to deliver the calf giraffe meant that the consideration for the contract wholly failed. The remedy of the nominal complainant was in a civil suit for damages for breach of contract or for an order for specific performance. It was the duty of the police to advise her accordingly and to decline to proceed with the complaint.

On Duties of Police and whether Nigeria Police is a debt recovery agency-
By virtue of section 4 of Police Act, Cap. P19 Laws of the Federation of Nigeria, 2004 the primary duty of the police is the prevention of crime, investigation and detection of Crime and the prosecution of offenders. The police is not a debt-recovery agency and has no business to dabble into contractual disputes between parties arising from purely civil transactions. The complaint in the instant case was purely civil with no element of criminality. The police ought to have referred the appellant to the court to pursue a civil claim.

On Need to prevent police from turning purely civil matters into crimes-
Per ABBA’AJI, J.S.C. at pages 325-326, paras. G-B
“As I went through the facts of this case, I was wondering how a purely civil matter could easily metamorphose and transubstantiate into a purely criminal case. The end result now is that the appellant has suffered irreparable damage, disgrace, shame, odiousness and untold hardship in the hand of the Police that is constitutionally and legally saddled with prosecution of criminal offences.
The police have muzzled the rights and freedom of Nigerians even where cases are clearly outside their jurisdiction, power or corridor. If this is not curbed, everybody including the judicial officers will suffer always from floodgates of civil matters being hijacked by the police and transmuted into crimes. If this is not tackled, everybody would have suffered in the merciless hand of the police which has become a law unto itself in this country.”

On Liability of person who reports purely civil matter to Police-
When a person reports a purely civil matter to the Police, such a person cannot go scot-free, as the report ought not to have been made at all since it is not within the purview of Police duties. It is a report made mala fide and he will be equally liable for the action taken by the Police irrespective of whether he actively instigated them or not, since he had no business involving the Police in a purely civil matter in the first place. Such conduct, which portrays a disregard of the law and is aimed at using the coercive powers of the State to punish contracting party in a purely civil matter, ought to be mulcted in exemplary damages. In the instant case, the conduct of Mrs. Sokari Davies, an enlightened person who reported such a matter to the police instead of going to court to seek for enforcement of the contract or damages for breach of same, amounted to wickedness, and was mala fide. The charges of cheating and criminal breach of trust could not have a place against the appellant, let alone proving it to a conviction. In fact he deserved an unreserved apology from Mrs. Sokari Davies who set, unjustly and mala fide, the criminal process against the appellant.

On Meaning and ingredients of offence of cheating –
The definition of the offence of cheating is contained in section 320(a) of the Penal Code. It provides that whoever by deceiving any person 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 is guilty of offence of cheating. The offence of cheating is punishable under section 322 of the Penal Code. In order to prove the offence of cheating in the instant case, the prosecution must prove that the Rivers State Ministry of Culture and Tourism was deceived and thereby fraudulently induced by the appellant to deliver the sum of N3.5 million to him. (P 317, paras. A-C)
Per GALUMJE, J.S.C. at pages 318-519, paras, F-E

I wish to state straight away that the lower court relied on the judgment of the High
Court and not the judgment of the trial Chief Magistrate, since the appeal to it was from the decision of the High Court. Be that as it may, the complaint here is whether the prosecution did establish its case beyond reasonable doubt as to warrant a conviction for cheating and criminal breach of trust contrary to sections 322 and 312 of the Penal Code. I have reproduced the provisions of these sections of the Penal Code elsewhere in this judgment.

Mrs. Sokari Davies, the prosecution’s first witness testified as follows:-
“I met the accused person in 2005. He was introduced to me as a consultant in wild animals by a friend, Roland Ahmed who claimed that the accused is his friend that could supply wild animals to us. So when the need arose, I told my commissioner then about him and the commissioner and I invited him during a conference we came to attend in Abuja at Ladi Kwali Hall of Sheraton Hotel. He came to us and we discussed with him about wild animals we wanted him to supply to us.”

In his evidence in chief, the appellant told the court that he is a veterinarian and that he holds HND from the College of Agriculture and Animal Science, Kaduna. In all this, no one gave evidence that the Ministry of Culture and Tourism, Rivers State was deceived and fraudulently induced to deliver the three million five hundred thousand naira to the appellant. Mr. Roland Ahmed who was alleged to have introduced the appellant as dealer in wild animals was not called as a witness to deny that the appellant was not a veterinarian and never embarked on supply of wild animals as a business. Since there is no evidence of deceit on the part of the appellant, the trial court was wrong in finding him guilty of the offence of cheating.

Moruff O. Balogun Esq.

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