Mustapha Umar Gwarzo V. Commissioner Of Police (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kano State sitting in its Appellate Judicial Division in Suit No K/5CA/2011 delivered by Honourable Justice Wada Abubakar Omar Rano and Honourable Justice Usman M. Na’Abba on the 11th of July, 2011.

The case leading up to this appeal was commenced in the Chief Magistrate Court of Kano State. The Appellant was arraigned by the Respondent before the Chief Magistrate Court on the 15th of July, 2007 on a First Information Report on two counts of criminal breach of trust by servant and misappropriation contrary to Sections 309 and 314 of the Penal Code Law. The Appellant denied the information and the matter proceeded to trial and in the course of which the Respondent called five witnesses in proof of its case and the Appellant testified as the first defence witness called six witnesses in proof of his defence.

At the conclusion, the Chief Magistrate, His Worship Ali Usman, in a judgment delivered on the 28th of January, 2011 found the Appellant guilty as charged and sentenced him to a fine of N10,000.00 on each count or imprisonment for three years for each count, the sentence to run consecutively. The Chief Magistrate also ordered the Appellant to pay a compensation of N20 Million to the complainant or go to prison for a term of five years in default of payment of the compensation.

The Appellant was aggrieved by the decision and he caused his Counsel to appeal to the Appellate Division of the High Court of Kano State (herein after referred to as the lower Court) by a notice of appeal dated the 1st of February, 2011. The appeal was entertained by the lower Court and it dismissed the appeal as lacking in merit in a considered judgment delivered on the 11th of July, 2011 and it affirmed the sentence passed on the Appellant.

The Appellant was again dissatisfied with the judgment and he caused his Counsel to file an appeal to this Court by a notice of appeal dated the 12th of July, 2011. The notice of appeal contained two grounds of appeal. The notice of appeal was subsequently amended and, an amended notice of appeal dated the 16th of January, 2013 was filed and it contained five grounds of appeal. This Court must say that there is some confusion as to the Suit Number of the matter before the lower Court.

The notice of appeal and the proceedings before the lower Court carried Suit No K/5CA/2011 while the notice of appeal to this Court, the amended notice of appeal and the briefs of arguments of the parties carry suit No KA/19C/CMA/2008 and the records of appeal carry Suit No KA/19C/2008. Now, since the appeal from the Chief Magistrate Court to the lower Court was filed in 2011, the most plausible suit number of the matter before the lower Court must be Suit No K/5CA/2011.

This court will discountenance the other suit Numbers and overlook the confusion since the parties were not misled by it. This Court must, however, say that it behoves parties to exhibit great care in preparation of their processes as such details as a misstated Suit Number may on certain occasions render an appeal incompetent.

In arguing the appeal before this Court, Counsel to the Appellant presented a brief of arguments dated the 7th of June, 2013 and filed on the 13th of June, 2013. The brief of arguments of the Respondent was dated the 23rd of July, 2013 and it was filed on the 24th of July, 2013. Counsel to the Appellant filed a reply brief of arguments dated the 12th of November, 2013 and filed on the 26th of November, 2013. The reply brief was deemed properly filed on the 27th of February, 2014. At the hearing of the appeal, Counsel to the parties relied on and adopted their respective briefs of arguments.

Counsel to the Appellant formulated three issues for determination in his brief of arguments and these were:

i. Whether the learned Justices of the Kano State High Court sitting on appeal did not err in law when they failed to hold the entire trial by the Chief Magistrate a nullity being a trial conducted in total breach of the Appellant’s right to fair hearing.

ii. Whether or not the learned Justices of the Kano State High Court were right when they affirmed the improper evaluation of the evidence of the trial Court.

iii. Whether the Kano Sate High Court sitting on appeal was right to affirm the decision of the learned trial Chief Magistrate that was based on the unreliable stock taking done in this matter.

Counsel to the Respondent conceded that there were three issues for determination, but he reformulated the issues thus: