Y. O. Bakare & Ors V The State (1967)
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COKER,J.S.C.
The appellant was one of three persons tried jointly by Jones, J. In the High Court, Maiduguri (charge No. JD/24C/67) on a charge which reads as follows:-
“1. That you, Sam. Ade Johnson, between the 31st day of August, 1966, and 20th February, 1967, at Jos in the Jos Magisterial District, being entrusted with some property, to wit, 1,000 bricks, property of Messrs. Embel Smelting Company Limited, committed criminal breach of trust in respect of those bricks and that you thereby committed an offence punishable under section 312 of the Penal Code.
2. That you, Sam. Ade Johnson, on or about the 20th February, 1967, at Jos in the Jos Magisterial District dishonestly misappropriated the sum of £3.10s (three pounds ten shillings) being money realised from the sale of 1,000 bricks, property of Messrs. Embel Smelting Company Ltd. and there by committed an offence punishable under section 309 of the Penal Code.
3. That you, Charles V.M. Graves on or about the 20th of February, 1967, at Jos in Jos Magisterial District dishonestly received stolen property, to wit, 1,000 bricks property of Messrs. Embel Smelting Company Ltd., having reason to believe the same to be stolen property and that you thereby committed an offence punishable under section 317 of the Penal Code.
4. That you Sam. Ade Johnson and Yusufu O. Bakare, on or about the 31st day of August, 1966, at Jos in Jos Magisterial District agreed to do an illegal act to wit to commit criminal breach of trust in respect of 1,000 bricks, property of Messrs. Embel Tin Smelting Company Limited and that you thereby committed an offence punishable under section 97(1) of the Penal Code”.
At the end of the trial all but the appellant were discharged and the appellant was convicted on the first count not of criminal breach of trust but of criminal misappropriation under section 300 of the Penal Code. He was the second accused at the trial; he was a licenced auctioneer in Jos. According to the evidence given at the trial, judgment had been obtained by the African Continental Bank Ltd. against a company, the Embel Smelting Company Ltd., and execution by writ had been levied against the property of the company which included a quantity of what were described as “imported bricks.” The appellant by virtue of his profession was entrusted with the sale of these bricks and he sold 1,000 of them to the third accused, one Charles Graves, at a total amount of £3:10s.
The first accused, Yusufu O. Bakare, was the bailiff of the court and the third accused was described as a baker. The case for the prosecution was that the first accused had no right to entrust the bricks as he did to the second accused, who in any case should have sold by public auction and not by private treaty as he did; that the second accused knew or sought to know that the bricks should have been sold for about £75 to the third accused who by the purchase had obtained to himself an unlawful gain. In an effort to prove the actual value of the bricks, the prosecution called a witness (i.e. fourth prosecution witness) by name Eric Smith, who was described as the works manager, Maker! Smelting Co., and whose duties included that of furnace building. He stated, inter alia In his evidence as follows:-
“I am shown exhibit 3. This sort of brick is not being made in Nigeria. It is definitely imported. From the markings on it, it appears to be a Portuguese brick. Its market value in Nigeria is about 1/6d minimum for one brick”. He was cross-examined and he stated thus:-
“If I were not a metallurgist, I would probably have no idea of the value of this brick”. At the close of the case for the prosecution, submissions were made on behalf of all the accused persons that the prosecution had not made out any prima facie case against them on the charge before the court. The learned trial judge over-ruled the submissions in respect of the first and second accused. He accepted the submission in respect of the third accused and in his ruling about him stated, inter alia, as follows:-
“The case against third accused is that he bought by private treaty 1,000 bricks similar to exhibit 3 value £75 for £3:10s from second accused and that he must have known that he was paying a ridiculously low price and secondly he must have known that second accused should have auctioned them. As to his knowledge of their value there is no evidence that he is an expert on bricks, yet fourth prosecution witness whose expert opinion was adduced by prosecution he said, “if I were not a metallurgist I would probably have no idea of the value of this brick,” in reference to exhibit ‘3’. There is evidence that £3:10s.- was a proper value for a local brick. In view of the evidence of fourth prosecution witness which I have quoted above I am of the opinion that no reasonable tribunal could convict third accused on this charge on this evidence. I find that he has no case to answer. He is acquitted on this head of charge. Since this is the only head on which he is charged he is discharged”.
The first and second accused persons were then called upon for their defence. In his evidence, the appellant (i.e. second accused) told a very long story of how he came into possession of the bricks, how he ‘thought” he could sell by private treaty instead of by public auction and how we came to sell 1,000 bricks to Graves for £3:10s. A large number of irrelevant matters were put to him in cross-examination; it does not appear to us however that with request to relevant matters he was anywhere shaken under what was admittedly a severe questioning. It was suggested to him that he was expected to know the value of the bricks he was to sell or if not so to have consulted “experts” as to the actual value of the bricks before he sold. He said he did contact people whom he thought should be contacted and all they told him was that the bricks could sell for between £2:10.s. and £3 per thousand. He maintained that he was only interested in selling bricks and not as such in the value of the bricks.
In a reserved judgment, Jones. J. discharged both the first and the second accused on the fourth count of the charge. With respect to the appellant whom he convicted on the first count of the charge, he observed, inter alia in his judgment as follows:-
“The prosecution case is that accused, an auctioneer, sold these bricks by private contract for less than value on entrustment by Deputy Sheriff acting under a writ of attachment of execution against the movable property of the judgment/debtor, Embels.
Everything about accused’s. dealings with these bricks gives rise to suspicion of criminality. He himself was a hopeless witness, and proved himself time and again in the witness box to be a liar. He was undoubtedly at the least, very negligent in not ascertaining the true value of these bricks.”
After making these findings which postulate that the high degree of proof required in our criminal law had not been forthcoming, the learned trial judge went on in his judgment as follows:-
“Although accused would have had no personal knowledge of the value of these bricks, It is obvious that he must have known that they were of a much higher quality and value than the local ones.
I think that the. prosecution. has proved that accused must have been aware of the greater value of the bricks he sold to Graves than local bricks.
Dishonestly, then, is proved. Graves had a wrongful gain; both judgment/debtor and judgment/creditor suffered wrongful loss. Accused knew this and intended it. Is there proof of misappropriation?
It was accused’s duty to sell by auction, and to sell to the highest bidder. He did neither. He thus put those bricks to the wrong use: private contract sale instead of auction, and he assigned them to the wrong person: an offerer not in competition with other offerers. Did he do so intentionally?” And finally the learned trial judge stated as follows:-
“By selling by private contract he knowingly put these goods to a ‘wrong use.’ By delivering them to Graves he assigned them to a ‘wrong person.’ On both points he is caught by the definition of ‘misappropriation”.
The offence charged is criminal breach of trust. The offence I have found proved is criminal misappropriation. Criminal breach of trust is criminal misappropriation by person entrusted with the misappropriated property. The addition to section 311 Penal Code of explicit wrongful dealing with the material property covered by that section, may all be characterized by ‘wrongful use.’ The offence of criminal misappropriation under section 309 Penal Code is therefore a ‘lesser offence’ within the meaning of section 218(1) C.P.C. so that without altering the charge I may convict of this lesser offence. I do so”.
As we pointed out before the appellant was thereafter convicted; and he was sentenced to imprisonment for 6 months together with a fine of £50, in default of which he was to go to goal for a further term of 4 months.
The appellant has appealed to this court and the ground canvassed on his be
Other Citation: (1967) LCN/1527(SC)
