Muhammadu Tsofoli Vs Commissioner Of Police (1971)
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ADEMOLA, CJN
The appellant was convicted and sentenced to a fine of £55 or 6 months imprisonment in default for cheating contra section 332 of the Penal Code at the Magistrate Court at Kaduna on the 17th July, 1969. He was also ordered by the learned magistrate to refund a sum of £160 which he had obtained as a result of the offence he had committed. He appealed to the High Court Kaduna against his conviction and sentence as well as the order made against him to refund the sum of £160.
On appeal, his conviction and sentence were set aside but the Court affirmed the payment of compensation of £160 to the complainant.
The appeal before us is mainly about the compensation of £160. The award of compensation in criminal matters is, in the Northern States, governed by section 78 of the Penal Code which enacts as follows:-
“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.”
For the appellant it was argued that since the conviction was set aside, the order for payment of compensation cannot stand. Learned Principal State Counsel, Mr. Uwais, for the respondent did not challenge this; he agreed that the order by the court of appeal is not within section 78 of the Penal Code, but argued that the court acted under its inherent jurisdiction.
The question of rewards and compensation in criminal cases, as far as we are aware, is never the subject of inherent jurisdiction of any court. Section 28 of the Criminal Law Act (English), 1826, empowered superior Criminal courts to order costs expenses and compensation to prosecutors and witnesses. Section 8 of the Criminal Justice Administration Act, 1851 extend these powers to courts of sessions of the peace. These compensations are only payable to persons who had apprehended an offender and not extended to cases where the offender had escaped, and they are limited to cases where the person apprehending had made an expense or loss of time.
Section 4 of the Forfeiture Act 1870 provided that:-
“it shall be lawful for a court, if it shall think fit, upon the application of any person aggrieved, and immediately after the conviction of any person for felony, to award any sum of money not exceeding £100, by way of satisfaction or compensation for any loss of property suffered by the applicant through or by means of the said felony……..”
Section 45 of the Larceny Act, 1916 reproducing section 100 of the Larceny Act 1861 provides as follows:-
“(1) If any person guilty of any such felony or misdemeanor as is mentioned in this Act in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving, any property, is prosecuted to conviction by or on behalf of the owner of such property, the property shall be restored to the owner or his representative.
(2) In every case in this section aforesaid, the court before whom such person is convicted shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner…”
Thus, in every case, the matter of compensation is governed by statute, and there is no inherent power in any court to award compensation after conviction for larceny and such like offences.
When an order for compensation is made it is part of the sentence passed by the Court – See R. v. William Jones (1929) 1 KB. 211; 21 Cr. App. R. 59. It follows therefore that when a conviction is quashed, the sentence passed must be set aside and this includes any compensation awarded. Our law on this point appears to be the same as English law. We however wish to refer to section 261 of our Criminal Procedure Act. It enacts:-
“261. Where in a charge of stealing or receiving stolen property, the court is of the opinion that the evidence is insufficient to support that charge, but it establishes wrongful conversion or detention of property, the court may order that such property be restored, and may also award damages.”
It is not clear whether the restoration here is after a conviction or when there is no conviction.
It is however manifest that in all these cases there are provisions of the law governing compensation or restoration and that the courts are not guided by any inherent power.
To return to section 70 of the Penal Code; it is dear that the award of compensation under this section can only be after a conviction and it forms part of the sentence passed. Having set aside the conviction and sentence passed by the Magistrate’s Court, the High Court was therefore in error in affirming the order of payment of compensation.
This appeal will therefore be allowed.
The order made by the High Court on appeal affirming the payment of compensation of £160 to the complainant after that court had allowed the appeal against the conviction of the accused (appellant) will be set aside, and is hereby set aside. If the appellant had paid the amount, it should be refunded to him.
Other Citation: (1971) LCN/1134(SC)
