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Alhaji Ganiyu Martins Vs Commissioner Of Police (2012) LLJR-SC

Alhaji Ganiyu Martins Vs Commissioner Of Police (2012)

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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 –

  1. 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”
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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:-

  1. Whether or not the trial Magistrate can validly award compensation after conviction under Section 365(1) of the criminal procedure code and section 78 of the Penal Code without reference to the limit of its Civil Jurisdiction as affirmed by the Court of Appeal.
  2. Whether or not the trial magistrate can validly award compensation after conviction under section 365(1) of the criminal procedure code and Section 78 of the Penal Code without reference to the limit of its criminal jurisdiction to impose fine”.

The respondent criticized the issues as formulated by the appellant and reframed this issues as follows:-

“Whether the Court of Appeal was right in affirming the decision of the High Court upholding the Order of the learned Chief Magistrate compelling the appellant to pay compensation in the sum of N753,075.85”.

At the hearing of the appeal on 20/9/12, the learned counsel to the appellant adopted its brief of argument and urged this court to allow the appeal. The two issues formulated by the appellant were argued together. It was the submission of the learned counsel to the appellant that by virtue of the provisions of Section 13 of the Magistrates Court law of Kano State the monetary jurisdiction of Chief Magistrates Court Grade I was limited to N30,000.00. It was therefore submitted that though Section 78 of the Penal Code and Section 365(1) of the Criminal Procedure code which was relied upon to make the Order of compensation in the sum of N753.075.85k did not place any limit to the amount to be awarded as compensation, the power to award compensation was not being mandatory but discretionary, a court of inferior and limited jurisdiction, like the Chief Magistrate Grade I must be guided by the limit of its monetary jurisdiction and cannot exceed same. It was contended that the award of compensation was civil in nature, thus the clear intention of Section 365(1) of C.P.C. is that award of compensation should be limited to the monetary jurisdiction of the Chief Magistrates Court. The case of NPA Plc v. Lotus Plastic Ltd. (2005) 12 SC. (Pt.1) 19 at 30 – 31 was cited.

It was further submitted that the combined provisions of section 78 of the Panel Code and 365(1) (b) of the C.P.C. by the use of the word may clearly shows that the Order for payment of compensation to the victim of a crime is not mandatory but discretionary of the option of the court because of the obvious civil nature of the Order, hence the trial court when making such an order, ought to be guided by the limit of its monetary jurisdiction on award of damages. Learned counsel further submitted that section 13 of the Magistrate Court Laws should be given its clear interpretation and read together with Section 78 of the Penal Code and Section 365(1) of the CPC in order to arrive at a just decision. Counsel relies on NPA Plc v. Lotus Plastic Ltd (supra) at 25, and Federal Ministry of Health and Anor v. Comet Shipping Agencies Ltd. (2009) 4-5 SC 110 at 128. It was further contended that the judgment of the lower court amounted to expanding the monetary jurisdiction of the Chief Magistrates Court I far and above the provisions of Section 13(2)(a) of the Magistrates Court Law instead of expounding it; he cited the case of Gafar v. Government of Kwara State and 2 Ors. (2007) 1 – 2 SC 189 at 25. The provisions of Section 78 of the Penal Code and Section 365(1) of the CPC are never intended to increase the civil and criminal jurisdiction of the Magistrates Courts.

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Learned Counsel to the respondent Sa’eda, Esq. also adopted his brief of argument and urged the Supreme Court to dismiss the appeal. He criticised the manner the appellant formulated the issues for determination. It was his contention that the manner the issues were framed gives the impression as if this court is sitting on appeal against the judgment of the Magistrates Court instead of the Court of Appeal. He cited the case of Fasoro vs. Beyioku (1988) 2 NWLR (Pt.76) 265 and contended that this Court (Supreme Court) has no jurisdiction to sit on appeal against the judgment of the Chief Magistrate.

On the issue for determination distilled by him, learned counsel submitted that the Chief Magistrate had a civil jurisdiction limited to the tune of N30,000.00 by virtue of Section 13 of the Magistrates Court Law Cap 89 Laws of Kano State 1991 and that this limitation only applies to Civil causes or matter.

He referred to the provisions of section 13 of the Magistrates Court Law and contended that the law by itself is made subject to any other enactment which, according to him, include the penal code and criminal proceedings section 13 of the Magistrates Court Law does not apply. He therefore contended that the order of compensation made by the learned trial magistrate was in pursuance of his powers under Section 78 of the penal code and section 365(1) of the CPC. The said provisions of penal code and CPC do not give ceiling as to the amount of compensation that the Chief Magistrate was empowered to order, and this is the only plain and natural interpretation that could be give to these provisions. Counsel referred to the case of Nyame vs. F.R.C.N. (2010) 7 NWLR (Pt.1193) 344 at 399. Therefore to limit the amount a Magistrate can order as compensation under Section 365 of CPC would amount to doing violence to the plain provisions of the sections of the laws.

I have carefully and closely too considered the criticism of the respondent vis-a-vis the way and manner the appellant formulated his two issues for determination. The issues were formulated in such a way that suggests that this court was sitting on appeal against the judgment of the chief Magistrate Grade I. Far from it, this court has no jurisdiction to sit on appeal against the judgment of the chief Magistrate court. The court can only entertain an appeal against the judgment of the Court of Appeal. Therefore, any appeal to this court must be challenging the judgment of the court of Appeal: Any issue thus formulated for determination must not only arise from the grounds of appeal but also relate to issues determined by the court of Appeal which correctness or otherwise is put before us for determination. The only exception however, is where an application is brought and granted by this court for a party to raise an issue not raised before the Court of Appeal, such an issue must not only be substantial but there must be evidence on it in the record of appeal in order to enable this court determine it. However the respondent did not raise this issue as a preliminary objection as required by the rules and as such I would, in the interest of justice, consider the issues as formulated particularly when the two issues were argued together.

The gist of this appeal is the determination of whether the compensation of N753,075.85 awarded by the Chief Magistrate Grade I pursuant to the provisions of Section 78 of the penal code and section 365(1) of the CPC was validly made. The High Court of Justice Kano State sitting on its appellate jurisdiction agreed with the Chief Magistrate and on further appeal to the Court of Appeal, Kaduna Division, the judgment of the High Court of Justice Kano was affirmed, hence a further appeal to the Supreme Court. Section 13 of the Magistrates Court Law of Kano State (supra) provides thus:-

“S.13 – Subject to the provisions of the constitution, thus edict and any other enactment, a Chief Magistrate Grade I shall have and exercise jurisdiction in any civil cause or matter:-

In all actions for the recovery of any penalty, rates, expenses, contribution or other like demand, which is recoverable by virtue of any law for the time being in force: –

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(i) It is not expressly provided by that or any other law that the demand shall be recoverable only in some other court; and

(ii) The amount claimed in the action does not exceed thirty thousand Naira. Provided that for the purpose of this paragraph the expression “penalty” shall not include a time in which any person is liable on conviction for a criminal offence”

While section 365(i)(b) of the Criminal procedure Code provides as follows: –

“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 fine, a convicted person shall pay a sum in compensation in whole or in part for the injury caused by the offence committed where substantial compensation is in the opinion of the court recoverable by civil suit”.

Section 78 of the Penal Code similarly provides 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 be either in addition to in substitution for any other punishment”.

At this juncture I must point out that the words of these enactments are not only clear but also un-ambiguous. The rule of interpretation of statutes enjoins courts to give such words their natural literal and ordinary meaning. See N.P.A. Plc v. Lotus Plastic Ltd (supra) at 30, Nyame v. FRN (supra) at 399. Looking at this provision of section 13 of the Magistrate Court Law Kano, it is clear that it only applies to “Civil cause or matter”. Thus a Chief Magistrate Grade I Kano does not have jurisdiction to entertain any “civil cause or matter” whose claim is in excess of N30,000.00 while sections 78 of the panel code and 365(1) of the Criminal Procedure Code relate to the criminal jurisdiction of the Chief Magistrates Court or any criminal court that have jurisdiction to hear and determine criminal cause or matter.

In my considered view for a Chief Magistrate or a criminal court to validly exercise the powers conferred by the provisions of sections 78 Penal Code and Section 365(1) of the C.P.C respectively it must be shown that: –

(a) The offence for which the accused person was charged is within the jurisdiction of the court:

(b) The accused person must have been convicted of the said offence;

(c) There must be evidence before the court which evidence must be such that, in the opinion of the court, would be capable of making the amount of compensation to be awarded recoverable by civil suit.

Hence the Sections (supra) do not give room to any criminal court to arbitrarily award compensation to any victim of an offence, when there is no sufficient evidence to such amount of compensation. In the instant case the appellant had on its own volution admitted the sum of N753,075.85k as the amount fraudulently gained from the assignment give to him by its employers.

Finally, this is an appeal against the triple decision of the three lower courts. The attitude of this court against concurrent decisions of lower courts is settled. It is that this court will not interfere with the concurrent findings of the lower courts except there is establishment mis-carriage of justice of a violation of some principles of law or procedure or the judgment is perverse. I refer to:-

a. National Insurance Corporation of Nigeria v. Power and Industrial Engineering Company Ltd (1986) 1 NWLR (pt.14) 1 at 36.

b. Enang v. Adiu (1981) 11 – 12 SC. 25 at 42.

c. Nwagwu v. Okonkwo (1987) 3 NWLR (Pt.60) 314 at 325; and

d. Igwego v. Ezendo (1992) 6 NWLR (Pt.249) 561 at 574.

In the appeal at hand, there is no slightest suggestion that there was any miscarriage of justice or a violation of substantive law or of any procedure to warrant any interference with the judgment of the court below now on appeal.

My lords, on the whole and in the light of The foregoing therefore I hold that this criminal appeal lacks merit and is hereby dismissed the judgment of the lower court affirming the conviction, sentence and order of compensation against the appellant by the Chief Magistrates Court are hereby further affirmed.


SC.92/2009

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