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:

1. 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?
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?”

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.