Alhaji Ganiyu Martins Vs Commissioner Of Police (2012)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C.

The Appellant, Alhaji Ganiyu Martins, was arraigned before the Chief Magistrate Court Grade 1, Kano for the offence of Criminal breach of trust by servant and cheating contrary to Section 314 and 322 of the Panel Code. At conclusion the trial the appellant was found guilty of criminal breach of trust by servant. In conclusion the Trial chief Magistrate ordered as follows:-

“The accused is hereby sentenced to 2 years imprisonment or pay a fine of five thousand naira. I will not order the accused to pay N2.5million naira, rather I will ask him to pay the sum of N753,075.85 which he agreed between himself and the company”.

The facts of the case are quite clear. The appellant was an employee of NECCO Sweet Company as its imports Manager. In that company, the appellant was charged with the responsibility of procuring of raw materials for the use in 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 investigation that the appellant owned up the liability to the tune of N753,078.85. Out of the alleged sum missing as the 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 then arraigned before the Chief Magistrate Grade I and subsequently charged as follows:-

“I, Mohammed Nasir Abubakar, Chief Magistrate I 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” see p.39 of the record.

At the end of the trial, the appellant was found guilty and convicted as earlier stated above see p.65 of the record. The appellant was sentenced to 2 years imprisonment with the option of the fine of five thousand naira. The appellant then paid the fine but declined to pay the compensation ordered by the Chief Magistrate. He then appealed against his conviction and sentence to the State High Court of Justice in its appellate jurisdiction. The High Court after hearing the appeal dismissed it for lack of merit.

The High Court in its judgment held as follows PP 8 – 18 See especially pp 18.

“We are Satisfied that the order of compensation in the sum of N753,076.86 was properly made under both Sections 365 of the Criminal procedure code and Section 78 of the Penal Code. This amount was the one admitted by the appellant in Exhibit 1 and his statement made to the Police on 21/11/95. The learned Trial Chief Magistrate did not exceed his jurisdiction when he made the said order of compensation as same was properly fortified by the provisions of Section 365 C.P.C. and Section 78 of the penal code”.

The appellant was dissatisfied with the judgment of the High Court of Justice Kano and un-successfully appealed to the Court of Appeal, Kaduna Division hereinafter called the lower court.

After the hearing of the appeal the lower court in a unanimous decision dismissed the appeal of the appellant and affirmed the judgment of the High Court of Justice Kano. In its judgment the lower court on pp.114 – 115 held as follows: Per Mahmud Mohammed JCA as he then was.

“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 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 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 Chief Magistrate Court 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 power 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 or in substitute 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 convicted”.

The appellant was again dissatisfied with the judgment of the lower court and thus appealed to this Honourable Court. Parties filed and exchanged their respective briefs of argument as provided by the Rules of this Court. The appellant adopted his Brief of Argument before us on 20th September, 2012. The appellant in his Brief of Argument formulated two issues for determination thus:-