Alhaji Ganiyu Martins V. Commissioner of Police (2005)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
The appellant in this appeal, Alhaji Ganiyu Martins was an employee of NECCO Sweets Company Nigeria Ltd. in Kano serving the company as its import’s manager. In that capacity, the appellant was charged with the responsibility of procuring raw materials for use in the production line of the company. In the course of the discharge of his responsibilities, the company allegedly suffered a loss of the sum of N2.5 million. The matter was reported to the police. It is in the course of the investigation that the appellant owned up liability to the tune of N753,075.85 out of the alleged sum missing as a result of the transaction handled by him on behalf of the company. The appellant then agreed to settle this amount by the payment of N30,000.00 – N40,000.00 monthly instalments.
A written agreement to this effect was signed by the appellant and the company. On failing to honour the undertaking in the agreement to refund the amount to the company, the appellant was arraigned before the trial Chief Magistrate Court Grade One and subsequently charged as follows after hearing evidence from four witnesses:
“I, Mohammed Nasir Abubakar, Chief Magistrate Grade 1, Gyadi Gyadi, Kano charge you Ganiyu Martins as follows:-
That you between the year January 1993 and September, 1995 being a servant in the employment of NECCO Sweets Nigeria Ltd. and in your capacity as import manager committed criminal breach of trust in respect of the purchase to the tune of N2.5 million naira over the said properties and that you thereby committed an offence punishable under section 314 of the Penal Code.”
The appellant pleaded not guilty to this charge and elected to give evidence in his own defence but did not call any other witness. At the end of the trial, the learned trial Chief Magistrate Grade 1 in his judgment delivered on 15/7/1997, found the appellant guilty as charged under section 314 of the Penal Code and convicted him accordingly. The appellant was sentenced to 2 years imprisonment with an option to pay a fine of N5,000.00. In addition, the appellant was ordered to pay the sum of N753,075.85 as compensation to his employers. The appellant paid the fine but without paying the compensation, appealed against his conviction and sentence to the Kano State High Court of Justice in its appellate jurisdiction, which after hearing the appeal dismissed it in its judgment delivered on 16/12/98. The appellant who is still aggrieved has now appealed to this court upon 5 grounds of appeal.
In the appellant’s brief of argument, two issues for determination were distilled from the 5 grounds of appeal filed by him. These issues are:
- Was the Kano State High Court Appeal session right in relying solely on the statement of the appellant before the police and exhibit ‘E’ which is an agreement entered into between the complainant company and the appellant in the office of the lawyers to the complainant’s company in affirming the conviction of the appellant when all evidence of the prosecution witnesses were patently unreliable?
- Was the Kano State Appeal session right in affirming the compensation order of the trial magistrate when the amount awarded was far above the monetary jurisdiction of Chief Magistrate?”
Learned counsel to the respondent however, is of the view that only one issue falls for determination in this appeal because the issue No.1 identified in the appellant’s brief of argument does not arise from the grounds of appeal filed by the appellant. The lone issue in the respondent’s brief of argument is:
“Whether the Kano State High Court appellate Division was right in affirming the learned Chief Magistrate’s order compelling the appellant to pay compensation in the sum of N753,075.85?”
Before proceeding to tackle the issues for determination in this appeal, it is necessary to examine the complaint of the respondent that the first issue for determination as framed in the appellant’s brief of argument, does not arise from the grounds of appeal filed by the appellant. I have earlier in this judgment quoted the 2 issues for determination as identified in the appellant’s brief of argument. The learned counsel to the appellant had claimed that the first issue in the appellant’s brief arose from grounds 1 and 2 of the appellant’s grounds of appeal. The 5 grounds of appeal filed by the appellant are as follows:
“1. Error in law
The Kano State Appeal Division erred in law and in fact when it affirmed the decision of the learned trial Chief Magistrate in believing the evidence of PW1.
Particulars of error
(i) When the evidence of the said witness is based on probabilities and suspicion.
(ii) When suspicion no matter how grave cannot ground conviction.
- Error in law
The court erred in law when it affirmed the decision of the learned trial Chief Magistrate shifting the burden of proving his innocence on the appellant.
Particulars of error
(i) When the law is that the burden is on the prosecution to prove the guilt of the accused person beyond all reasonable doubt.
(ii) When there was nothing tangible said by the prosecution witnesses for the accused person to defend.
- Error in law
The court erred in law when it affirmed the award of compensation by the learned Chief Magistrate beyond his monetary jurisdiction.
Particulars of error
(i) When the monetary jurisdiction of a Chief Magistrate in Kano is N30,000.00
(ii) When it was not clear from the record the basis upon which the learned trial Chief Magistrate based his compensation of N753,076.85k which he awarded.
- Misdirection in law
The Kano State High Court Appeal misdirected itself in law when it failed to make any categorical order on ground 3 of the appellant’s grounds of appeal before it.
Particular of misdirection
(i) When it is the finding of the court that there is merit in the ground complained about.
- Error in law
The Kano State High Court Appeal Division erred in law when it held that the learned trial Chief Magistrate evaluated the cross-examination of the prosecution witnesses and the evidence of the appellant.
Particulars of error
(i) When it is clear from the record from the trial court that the learned trial Chief Magistrate hid under that out dated phrase of ‘I believe’ and ‘I do not believe’.
ii. When throughout the judgment the learned trial Chief Magistrate made only passing statements in respect of the evidence of the appellant and the cross-examination of the prosecution witnesses.”
It cannot be disputed that in none of the 5 grounds of appeal quoted in this judgment, did the appellant complain of the action of the court below in relying solely on the appellant’s statement before the police and the agreement between the appellant and the complainant company in’ affirming the conviction of the appellant. It is quite easy therefore to see that the 1st issue in the appellant’s brief complaining on the alleged reliance by the court below on his statement before the police and the agreement exhibit ‘E’, does not in fact arise from any of the grounds of appeal filed by the appellant. That issue is entirely standing on its own without any ground of appeal supporting it. This appeal cannot therefore be determined on it. See Opara v. Omolu (2002) 10 NWLR (Pt. 774) 177 at 189 190; Attorney-General, Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646 and Ehot v. State (1993) 4 NWLR (Pt. 290) 644 at 665.
The second issue for determination in the appellant’s brief of argument is also vague although the lone issue framed in the respondent’s brief of argument, no doubt is derived from ground 3 of the appellant’s grounds of appeal and is therefore a valid issue. However, there is no issue for determination which was distilled from any of the 4 remaining grounds of appeal which by law are deemed to have been abandoned by the appellant. See Atunrase v. Phillips (1996) 1 NWLR (Pt. 427) 637; Dieli v. Iwuno (1996) 4 NWLR (Pt. 445) 622 and Effiong v. State (1998) 8 NWLR (Pt.562) 362. On these authorities, I have no option than to hold that grounds 1, 2, 4 and 5 of the grounds of appeal on which no issues have been formulated have been abandoned by the appellant.
The deficiency observed in the appellant’s brief of argument does not end with the 4 grounds of appeal deemed abandoned and the 1st issue for determination which does not arise from any of the 5 grounds of appeal filed by the appellant. It appears even the 2nd issue for determination in the appellant’s brief of argument is also defective as it does not relate to the judgment of the Kano State High Court sitting in its appellate jurisdiction being appealed against. Although I have earlier in this judgment quoted that issue, even at the expense of repetition, I shall quote it again for the purpose of clarity. That issue reads-
“2. Was the Kano State appeal session right in affirming the compensation order of the trial magistrate when the amount awarded was far above the monetary jurisdiction of Chief Magistrate?”
The complaint of thy appellant in this issue strictly relates to an appeal session only. The court whose appeal session the appellant is complaining against in the issue has not been named in the issue. This omission is certainly fatal to the competence of the issue because the issue is expected to be related to the decision of the court of law being appealed against. See Obasanjo v. Yusuf (2004) 9 NWLR (pt 877) 144 at 177.
Although the two issues in the appellant’s brief of argument are defective and therefore cannot form the basis for the determination of this appeal, the fact that the respondent has formulated a correct and competent issue from ground 3 of the appellant’s grounds of appeal, I shall proceed to determine the appeal on the respondent’s sole issue which is whether the Kano State High Court appellate Division was right in affirming the learned Chief Magistrate’s order compelling the appellant to pay compensation in the sum of N753,075.85 .
The complaint of the appellant in ground 3 of his grounds of appeal from which the present issue was formulated is that the amount of compensation awarded by the learned trial Chief Magistrate to the tune of N753,075.85 is far above the limit of the monetary jurisdiction of a Chief Magistrate Court under section 13(c) of the Magistrate’s Court Law of Kano State. Learned counsel to the appellant argued that although section 365 of the Criminal Procedure Code and section 78 of the Penal Code relied upon by the lower court in affirming the decision of the trial Chief Magistrate court did not limit the monetary jurisdiction of the trial Chief Magistrate Court, it is contrary to section 13 of the Magistrates Courts Law of Kano State.
For the respondent however, it was submitted that the relevant law governing the payment and award of compensation is contained in sections 78 of the Penal Code and section 365 of the Criminal Procedure Code. That section 13(c) of Kano State Magistrates Court Law is a provision that relates to civil jurisdiction of the magistrates and not to their criminal jurisdiction. Learned counsel pointed out that since the present case arose from the exercise of criminal jurisdiction, section 13(c) of the Magistrates Court Law does not apply. Learned counsel observed that although section 365 of the Criminal Procedure Code was based on section 545 of the Indian Criminal Procedure Code of 1899 which made provision for the payment of compensation out of the fine imposed by a court, in section 365 of the Criminal Procedure Code, the payment of compensation was made in addition to the payment of fine and provided no limit to the amount of compensation that may be awarded. That section 78 of the Sudan Penal Code on which section 78 of the Penal Code was based also provided for the payment of compensation out of the fine imposed by a court while section 311 of the Sudan Criminal Procedure Code had limited the amount of compensation that might be imposed by a court not to exceed twice the amount that might be imposed by that court as a fine. That since the law makers in Nigeria in considering the provisions of the Penal Code and the Criminal Procedure Code had similar codes in Sudan and India as their guide, the decision to impose no limit to the amount of compensation under section 78 of the Penal Code and section 365 of the Criminal Procedure Code, was deliberate. Learned counsel therefore concluded that the clear provisions in the sections should be given their natural meaning as stated in Nafiu Rabiu v. State (1980) 8-11 SC 130, (1980) NSCC (Vo1.l2) 291 and the case of Adah v. NYSC (2001) 1 NWLR (Pt. 693) 65 at 79 – 80.
The record of this appeal speaks for itself. It shows that this appeal arose out of the decision of the trial Chief Magistrate Court, Kano convicting the appellant of the offence of criminal breach of trust by a servant under section 314 of the Penal Code. The appellant was sentenced to a term of imprisonment of 2 years or a fine of Five thousand naira in the alternative. In addition to sentence, the appellant was ordered to pay the sum of N753,075.85 as compensation to the victim of the crime for which he was convicted. These proceedings were clearly in exercise of the criminal jurisdiction of the trial Chief Magistrate Court. Therefore the , provisions of section 13 of the Magistrate Courts Law of Kano State which deals with the limit of the civil jurisdiction of such courts, is, certainly not applicable to the proceedings now on appeal. The relevant provisions of the law which governed the powers of the trial Chief Magistrate Court in exercise of its criminal jurisdiction to award compensation in addition to any sentence imposed on an accused person convicted and sentenced by it, is the one applicable. The relevant provisions of the law in this respect is partly contained in section 78 of the Penal Code which states:-
“78. Any person who is convicted of an offence under this Penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.”
From this provision of the law, any court in exercise of its criminal jurisdiction in trying an accused person in Kano State for any offence under the Penal Code, provided the trial ended in a conviction of the accused person, that court may also award compensation to the victim of the offence without any limit in addition to or in substitution for any other punishment for the conviction. See Tsofoli v. Commissioner of Police (1971) 1 All NLR 338 at 341; NSCC (Vol.7) 330 at 333. In other words what determines the limit of the amount of compensation to be ordered by any criminal court, is the jurisdiction of that court to try the accused for the offence for which the accused was convicted.
The provisions of section 365 of the Criminal Procedure Code also empowered the trial Chief Magistrate Court or any other court for that matter exercising criminal jurisdiction under the Criminal Procedure Code to make an order for the payment of compensation in addition to fine after convicting an accused person tried by such court. Section 365 states:
“365(1) Whenever under any law in force for the time being a criminal court imposes a fine, the court may, when passing judgment, order that in addition to a fine a convicted person shall pay a sum
(a) in defraying expenses properly incurred in the prosecution;
(b) in compensation in whole or part for the injury caused by the offence committed, where substantial compensation is in the opinion of the court recoverable by civil suit;
(c) in compensating an innocent purchaser – of any property in respect of which the offence was committed who has been compelled to give it up;
(d) in defraying expenses incurred in medical treatment of any person injured by the accused in connection with the offence.
(2) If the fine referred to in sub-section (1) is imposed in a case which is subject to appeal, no such payment additional to the fine shall be made before the period allowed for presenting the appeal has elapsed or, if an appeal is presented, before the decision on the appeal.”
While the power of a criminal court to award compensation under section 78 of the Penal Code is to be exercised against an accused person who was tried and convicted for an offence under the Penal Code, the same criminal court may exercise the same power under section 365(1) of the Criminal Procedure Code in the trial and conviction of an accused person under any law for time in force where a fine had been imposed as a punishment for the offence after conviction. In other words, the award of compensation against an accused person convicted under any law for an offence is always in addition to a fine imposed as a punishment for the offence. That is under section 365, there is no option to the court, to impose the award of compensation against an accused person in substitution to a fine as contained under section 78 of the Penal Code.
What is significant from the wordings of the provisions of section 78 of the Penal Code and section 365 of the Criminal Procedure Code respectively on the powers of all criminal courts to award compensation against an accused person after conviction, is that no limit to the amount of compensation was specified for the various categories of criminal courts. The words used in the provisions of the two sections of the two statutes are quite plain. It is trite that in the interpretation of the provisions of statutes such as section 78 of the Penal Code and section 365 of the Criminal Procedure Code, where the words used in the statute are direct and straight forward and unambiguous, the plain words as used in the statute must be construed on the ordinary plain meaning of the words. See African Newspapers of Nigeria Ltd. & Ors. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137. The duty of the court in situation as in the present appeal is quite clear. If the language used by the lawmakers in the statutes is quite clear and explicit, the court must give effect to the words because in such situation, the words of the statute also speak of the intention of the lawmakers. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; Macaulay v. R.Z.B. Austria (2003) 18 NWLR (Pt. 852) 282 at 326 and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 at 180. Therefore, it is my view that to read any limit to the amount of compensation to be awarded by any criminal court under section 78 of the Penal Code and section 365 of the Criminal Procedure Code, would amount to doing violence to the plain provisions of the sections of the laws. Thus, on the correct interpretation of section 78 of the Penal Code and section 365(1)(b) of the Criminal Procedure Code, the award or order of compensation made by the trial Chief Magistrate Grade 1 in the sum of N753,075.85 against the appellant after convicting him of the offence of criminal breach of trust under section 314 of the Penal Code, was quite in order having been made within the powers of that court under the law. Consequently, the lower court was also right in affirming that decision in its judgment delivered on 16-12- 1998.
Although the appellant’s issue No.1 cannot form the basis for the determination of this appeal for it not being derived from any of the appellants grounds of appeal 4 of which are deemed abandoned, this being a criminal appeal and the need to give the appellant a fair hearing inspite of the carelessness of his counsel in formulating the issues for determination of the appeal in the appellant’s brief of argument, on a very careful examination of the record of the appeal, I am quite satisfied that from the evidence on record, the conviction of the appellant under section 314 of the Penal Code was quite in order. This is because apart from complaining on the reliance by the court below on his own statement to the police which he wrote himself partly admitting the amount of money he was prepared to pay and the admission in evidence of same statement which his own counsel did not oppose during his trial, coupled with the agreement exhibit ‘E’ which the appellant himself voluntarily signed with the complainant, there is no serious argument at all in the appellant’s brief of argument that his conviction was wrong. The position of the appellant was further compounded by the fact that he was appealing against two concurrent findings of conviction and sentence by the trial Chief Magistrate court and the lower court.
The attitude of this court and indeed of the Supreme Court as well in appeal against concurrent decisions of lower courts is well settled. It is that an appellate court will not interfere with the concurrent findings of the lower courts on issues of facts except there is established a miscarriage of justice or a violation of some principles of law or procedure. Several cases that come to mind on this state of the law include National Insurance Corporation of Nigeria v. Power and Industrial Engineering company Ltd. (1986) 1 NWLR (Pt. 14) 1 at 36; Enang v. Adu (1981) 11 – 12 SC 25 at 42; Nwagwu v. Okonkwo (1987) 3 NWLR (Pt. 60) 314 at 325 and Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 at 574. In the instant case, there is no even the slightest suggestion that there was any miscarriage of justice or a violation of substantive law or of procedure, to warrant any interference with the judgment of the court below now on appeal.
On the whole therefore, this appeal has failed and the same is hereby dismissed. The judgment of the lower court affirming the conviction, sentence and order of compensation against the appellant by the trial Chief Magistrate Court, are hereby affirmed.
Other Citations: (2005)LCN/1689(CA)
