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ABDULLAHI v. C.O.P (2022)

ABDULLAHI v. C.O.P

(2022)LCN/15946(CA) 

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, April 29, 2022

CA/K/661/C/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ADAMU ABDULLAHI APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

 

RATIO

THE PRINCIPLE GOVERNING THE USE OF THE WORD “SHALL” IN A LEGISLATIVE SENTENCE

The principle governing the use of the word “shall” in a legislative sentence is that it is generally imperative or mandatory and in its ordinary meaning “shall” is a word of command which is normally given a compulsory meaning because it is intended to denote obligations. “Shall” however sometimes is intended to be directory only and in that case it is equivalent to “may” and will be construed as being merely permissive. See Nyesom vs. Peterside (2016) 1 NWLR (Pt. 1492) 71 SC, Rufus Femi Amokeodo vs. Inspection General of Police (1999) 6 NWLR (Pt. 607) 467, M.P.P.P vs. INEC (2015) JELR 40431 (SC). PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State sitting on appeal delivered by Hon. Justice K. Dabo and Hon. Justice L. D. Aba on the 6th day of June 2019, wherein, the Court dismissed the Appellant’s appeal and affirmed the judgment of the trial Chief Magistrate Court convicting the Appellant for the twin offences of criminal breach of trust and cheating contrary to Section 296 and 306 of the Penal Code of Kaduna State.

The Appellant was arraigned before the Chief Magistrate Court of Kaduna State sitting at Rigasa on the allegations of criminal breach of trust and cheating contrary to Section 296 and 306 of the Penal Code of Kaduna State, which he pleaded not guilty to the charge. (See pages 5 of the Record).

The Appellant was convicted and sentenced to 6 months imprisonment with an option of fine of N30,000 (Thirty Thousand Naira) only for each of the twin offences, and in addition, to pay the nominal complainant compensation in the sum of N550,000 (Five Hundred and Fifty Thousand Naira) only, failure of which the convict will serve an additional 18 months imprisonment. (See page 6 of the Record).

The Appellant being dissatisfied with the judgment of the trial Court appealed against same vide a notice of appeal dated 23rd November 2018. (See pages 1 and 2 of the Record).

The lower Court in a considered judgment affirmed the decision of the trial Court and dismissed the Appellant’s appeal. (See pages 16 – 23 of the Record)

The Appellant at first filed a Notice of Appeal containing three (3) grounds of appeal on 11-09-2019 but later filed an Amended Notice of Appeal in this Court on 9-07-2020 but deemed filed on 16-07-2020.

The Appellant’s grounds of appeal together with their particulars are reproduced below:
“GROUND ONE
That the learned justices of the Court below erred in law when they held that the trial Magistrate was on track and complied wholly with the provisions of Section 125(7) of the Administration of Criminal Justice Law of Kaduna State, 2017.
PARTICULARS OF ERROR
1. The trial Court did not comply with Section 125(7) of the Administration of Criminal Justice Law of Kaduna State, 2017.
2. The trial Court failed to enquire if the Appellant has any cause to show why he should not be tried by the lower Court after his plea was taken.
GROUND TWO
The learned justices of the High Court of Justice of Kaduna State, in the exercise of their appellate jurisdiction erred in law when they held that the trial Court was right to have convicted the Appellant for both offences and ordered to pay compensation of N550,000 (Five Hundred and Fifty Thousand Naira) only or 18 in lieu thereof when:
PARTICULARS OF ERROR
1. The Administration of Criminal Justice Law of Kaduna State, 2017 provides for payment of compensation only.
2. The Administration of Criminal Justice Law of Kaduna State, 2017 does not provide for terms of imprisonment in lieu of compensation.
3. The learned trial Court thereby exceeded its jurisdiction by sentencing the Appellant to 18 months imprisonment in lieu of compensation.
GROUND THREE
The learned Justices of the lower Court erred in law when they held that the appeal failed to attract merit to itself and therefore dismissed same.
PARTICULARS OF ERROR
1. The lower Court did not consider the Respondent’s failure to lead evidence to establish the Appellant’s guilt before affirming the decision of the trial Court.
2. That by the fact of paragraph one above the lower Court thereby occasioned a miscarriage of justice against the Appellant.”

Appellant’s brief of argument was filed on 10-07-2020 but was deemed filed on 16-07-2020. It is settled by S. O. Ikani Esq.

Respondent’s brief of argument was filed on 13-07-2020 but was deemed filed on 16-07-2020. It is settled by Jacob Ifere Esq.

Learned counsel for the Appellant nominated only one issue for determination of the appeal.
It is:
“Whether the affirmation of the conviction of the Appellant as well as the affirmation of the order of compensation awarded against the Appellant by the lower Court is sustainable in law.”

Learned counsel for the Appellant submitted on the sole issue that the confirmation of the conviction and sentence passed on the Appellant by the lower Court is unsustainable in law, having regards to the provisions of the law. That in confirming the conviction of the Appellant, the lower Court held as follows:
“We must all remind ourselves that throughout the length & breadth of the Appellant’s submission, whether on the face of the records at the lower Court or even on his written address of counsel, it is not shown anywhere that the Appellant denied admitting the guilt before the trial Court or that he was compelled in one way or the other, to so admit involuntarily if that is what we have been presented with then it suffice it to say and to do boldly and courageously, that in deed the trial Chief Magistrate was on track and complied wholly with the provision of Section 125(7) & (8) and we so hold.”
See 21 of the Record of Appeal.

He submitted that a careful perusal of the judgment of the lower Court will show clearly that the lower Court never considered the import of Section 125(7) of the Administration of Criminal Justice Law of Kaduna State in resolving the appeal of the Appellant herein.

He submitted that the lower Court failed to find whether or not there was compliance with the provisions of Section 125(7) of the Administration of Criminal Justice Law of Kaduna State (ACJL). Also, that the lower Court also failed to consider the effect of the failure of the trial Magistrate to comply with the provisions of Section 125(7) of the ACJL.

He submitted that the Magistrate Court ought to have first applied the provisions of Section 125(7) of the ACJL and depending on the outcome proceed to apply the provision of Section 125(8) of the ACJL. He submit that the trial Chief Magistrate did not take into consideration the mandatory provision of Section 125(7) of the ACJL before proceeding to convict and pass sentence of the Appellant.
Section 125(7) provides thus:
“(7) Where the suspect appears or is brought before the Magistrate, Alkali or Judge, the particulars of the offence of which he is accused shall be read to him and he shall be asked if he has any cause to show why he should not be tried by the Magistrate, Alkali or Judge.”
He referred to the cases of Dr. Arthur Nwankwo & Anor v. Alh. Umaru Yar’adua & 7 Ors (2010) LPELR – 2109, Onoche v. Odogwu (2006) 6 NWLR (Pt. 975) 65, Amoshima v. State   2008 4 NCC 280 at 319 – 320, Ugwu & Anor v. Ararume & Anor (2007) ALL FWLR (Pt. 377) 807, (2007) 6 SC (Pt. 1) 88 and submitted that the use of the word “shall” in Section 125(7) of the ACJL connotes mandatoriness.

He submitted that the learned trial magistrate ought to have first complied with the provision of Section 125(7) before complying with the provision of Section 125(8) of the ACJL. He referred to the cases of Nyame v. F.R.N. (No. 2) (2010) 5 NCC 295 at 340, I.N.E.C. v. R.T.C.N. (Anglican Communion) Diocese of Orlu (2010) ALL FWLR (Pt. 511) 1015 C.A. and urged that Section 125(7) ACJL should be given its plain and ordinary meaning.

Appellant’s counsel submitted that the failure of the trial Chief Magistrate to comply with Section 125(7) ACJL foistered injustice on the Appellant. This he said is so as the Appellant’s right not to submit to the jurisdiction of the Court in the face of valid reasons was robbed him by the trial magistrate, who failed to give him the opportunity. He added that based on this, the conviction of the Appellant is liable to be set aside.

On another wicket, learned counsel for the Appellant submitted further that it was most unsafe for the trial Chief Magistrate to have convicted the Appellant simply on his plea of guilt, where there was nothing outside his plea pointing to his guilt.

On this, Appellant’s counsel referred to the cases of Sumanya Issah Torri v. The National Park Service of Nigeria (2008) LPELR – 8475 (CA), Idris Rabiu v. State (2005) 1 NCC 578 at 595.

He submitted that there was no evidence led outside the plea of guilt to support the conviction of the Appellant. That the trial magistrate did not ask the Appellant if he admits the facts alleged by the Respondent herein as constituting the offence. Thus, there was nothing to satisfy the trial Court that the Appellant intended to admit the commission of the offence alleged against him. He added that the learned Judges of the lower Court erred in affirming the conviction of the Appellant.

Appellant’s counsel, yet on another wicket submitted that the lower Court affirmed the award of compensation awarded by the trial Chief Magistrate against the Appellant in the sum of N550,000 in favour of the nominal complainant. He complained that contrary to the usual practice that the learned Chief Magistrate herein suo motu awarded compensation without the prosecutor applying for same. Finally on the sole issue, learned counsel for the Appellant submitted that the learned Chief Magistrate erred in making an order of compensation along with an order for imprisonment of the Appellant in the event of his failure to pay the compensation awarded against him. He referred to the case of Duru v. F.R.N. (2018) ALL FWLR (Pt. 985) 404 at 443 and submitted that just as a Court cannot hand down a sentence below the minimum prescribed by statute, so also it cannot hand down punishment not envisaged by statute.

He concluded on the sole issue that the order of compensation as provided for in Section 330 of the ACJL Kaduna State does not give the trial magistrate or any other Court the powers to order a term or imprisonment in lieu of payment of compensation against a convict.

He urged us to resolve the sole issue in favour of the Appellant.

In defending the judgment of the trial magistrate and the Court below, learned counsel for the Respondent submitted that the learned trial magistrate complied with the provisions of Section 125(7) & (8) ACJL; which provides the procedure to be followed before conviction.

That the offences alleged against the Appellant were read to him. He took his plea. He admitted guilt. He did not object to the competence or propriety of the learned trial magistrate to try him. Thus, his admission of guilt, said counsel, is as potent as a voluntary confession and same can legally sustain a conviction.

He referred to the cases of John Timothy v. F.R.N. (2012) LPELR – 9346 (SC) and Nwizuk v. Eneyok (1953) 14 WACA 354.

He continued and submitted that where the convict admits an offence and if he shows no reason why he should not be convicted, the Magistrate, Judge or Alkali may convict him accordingly. He submitted that the trial Court rightly convicted the Appellant upon his plea of guilty as the plea of guilty amounts to an admission of the alleged offence and the Court can convict upon his admission without further evidence. This, said counsel is more so as the Appellant could not show cause as to why he should not be convicted.

On this, counsel referred to the cases of Din v. African Newspaper Ltd. (1990) NWLR (Pt. 139) 396, Kpoobari v. F.R.N. (2016) LPELR 40010 (SC) 7, Okewu v. F.R.N. (2012) 9 NWLR (Pt. 1305) 327.

He reasoned that the learned Justices of the lower Court were right when they stated at page 21 of the Record of Appeal that:
“We must all remind ourselves that throughout the length & breadth of the Appellants submission, whether on the face of the records at the lower Court or even on his written address of counsel it is not shown any where that the Appellant denied admitting the guilt before the trial Court or that he was compelled in one way or the other, to so admit involuntarily if that is what we have been presented with then it suffice it to say and to do boldly and courageously, that in deed the trial Chief Magistrate was on track and complied wholly with the provision of Section 125(7) & (8) and we so hold.”

He submitted that the judgment of the lower Court contains a careful review of the proceedings of the trial Court. That there was no moment when the learned trial magistrate failed to comply with the provision of the law in the course of the summary trial of the Appellant. In any event, the Appellant has not been able to state categorically the injustice he has suffered as a result of the judgment of the trial Court assuming [but not conceding] the trial Court did not comply with Section 125(7) of the ACJL.

He referred to the cases of Dele Gabriel v. The State (2011) 6 NCC 249 and Godwin Chukwuma v. F.R.N. (2011) 6 NCC 180 to say that the Appellant has not established any miscarriage of justice.

He submitted that the word “shall” though significant in Section 125(7) ACJL does not create a mandatory duty, the Section of the law must be holistically viewed to ascertain the legislative intention.

On the sometimes directory nature in the use of the word “shall”, Respondent’s counsel referred to the cases of Rufusfemi Amokeodo v. Inspector general of Police (1999) 6 NWLR (Pt. 607) 467, M.P.P.P. v. INEC (2015) JELR 40431 (SC).

On another wicket, learned counsel for the Respondent defended the position of the trial Chief Magistrate and the lower Court on award of compensation. He reproduced the provision of Section 330(1) – (3) of the ACJL Kaduna State and submitted that the issue of compensation in whole is at the discretion of the Magistrate or Judge. That it is inconsequential whether the prosecutor applied for an order of compensation before it was made.

He also referred to the cases of Alhaji Ganiyu Martins v. C.O.P. (2005) 7 NWLR (Pt. 925) 614 and Tsofoli v. C.O.P. (1971) ALL NLR 339 to submit that the law provides that the order of compensation may be made in addition to or in substitution for any punishment resulting from the conviction.

He concluded on the sole issue that the lower Court was right in affirming the decision of the trial Court which is lawful and in the interest of justice as the Appellant failed to show the injustice he has suffered as a result of the judgment of the trial Court.

Resolution of sole issue
The first complain in the Appellant’s sole issue is the allegation by the Appellant that the failure of the learned trial Magistrate to comply with the provision of Section 125(7) of the ACJL Kaduna State before applying the provision of Section 125(8) on summary judgment is fatal to the conviction of the Appellant.  For ease of reference, the provisions are reproduced thus: “125 (7) Where the suspect appears or is brought before the Magistrate, Alkali or Judge, the particulars of the offence of which he is accused shall be read to him and he shall be asked if he has any cause to show why he should not be tried by the Magistrate, Alkali or Judge.”
“125 (8)
Where upon hearing the information, the alleged suspect admits the commission of the offence contained in the First Information Report, his commission shall be recorded as near as possible in the words used by him and if he shows no sufficient cause why he should not be convicted, the Magistrate, Alkali or Judge may convict him accordingly and in that case it shall not be necessary to frame a formal charge.”
The above provisions are part of the bundle of provisions contained in Section 125, part XIV of the ACJL Kaduna State as procedure for receiving complaint and first information report. The purpose of Sub-section (7) is to affirm that the suspect does not have any questions submitting to the jurisdiction of the Court. Subsection (8) on the other hand necessarily assumes the fulfillment of the provision of Subsection (7) in providing for a summary judgment procedure in lieu of the framing of a formal charge.
There is some interconnectivity between the provisions of Section 125(7) and (8) of the ACJL but clearly there is no interdependence between the two provisions.
Put in another way, Section 125(7) does not create a condition precedent to the application of Section 125(8) of the ACJL.
It is in this respect, that I accept the proposition from the learned counsel for the Respondent that the word “shall” in the provision of Section 125(7) is necessarily directory and not mandatory. This in the sense that the procedure for summary judgment on the hearing of information is not rendered invalid or incompetent by the omission to comply with the provision of Section 125(7) before it. There is no mandatory sequence in between the application of the provision of Section 125(7) and 125(8) of the ACJL Kaduna State.

The principle governing the use of the word “shall” in a legislative sentence is that it is generally imperative or mandatory and in its ordinary meaning “shall” is a word of command which is normally given a compulsory meaning because it is intended to denote obligations. “Shall” however sometimes is intended to be directory only and in that case it is equivalent to “may” and will be construed as being merely permissive. See Nyesom vs. Peterside (2016) 1 NWLR (Pt. 1492) 71 SC, Rufus Femi Amokeodo vs. Inspection General of Police (1999) 6 NWLR (Pt. 607) 467, M.P.P.P vs. INEC (2015) JELR 40431 (SC).

More important to the determination of this first point under the sole issue in this appeal is that an Appellant who would complain on appeal on non-compliance with the provision of Section 125(7) in relation to the application of the provision of Section 125(8) as in the instant case ought indeed to show the injury he suffered by reason of the said non-compliance. In other words, in the instant case, having voluntarily pleaded guilty to the offences charged, the Appellant herein cannot be heard to complain of any miscarriage of justice.

The lower Court was thus right when it held on this point at pages 19 – 20 of the record of appeal that:
“Now, heavy weather was made by the Appellant counsel on failure to comply with Section 125(7) & (8) ACJL 2017 of Kaduna State.
Again we read those provision Section 125(7) requires that the F.I.R be read & explained to the Defendant and he asked to show cause if he does not want the magistrate to try him.
Looking at the proceeding on pages 3 & 4 of the records of the lower Court, it is clear that the Appellant freely admitted the two offences and the Magistrate proceeded to try him summarily under Section 367(2) ACJL 2017. It is also clear that when asked, the Appellant stated that he had no cause to show as to why he should not be convicted based on his plea of guilty. Based on that the Chief Magistrate Court proceeded to convict him accordingly.
The question to be quickly asked is whether the proceeding adopted above by the trial Magistrate was guilty. We found solace in what Section 125(8) provides it clearly states that where a free admission is made a Court
“…may convict him accordingly and in that case, it shall not be necessary to file a formal charge.”
Therefore, if no formal charge shall not be necessary why a person cannot be convicted based on his plea of guilty we pose.”

Still on the sole issue in this appeal, the second point raised by the learned counsel for the Appellant is that it was most unsafe for the trial Chief Magistrate to have convicted the Appellant simply on his plea of guilty, where there was nothing outside his plea pointing to his guilty.

On this Appellant’s counsel referred to the case of Idris Rabiu vs. State (2005) 1 NCC 578 at 595.

Again, the position taken by the learned counsel by the Appellant is not justified by law or the facts of the instant case.

The record of appeal here shows that there was an unequivocal admission of guilt by the Appellant to the two offences charged which in the word of Section 125(8) “…shows no sufficient cause why he should not be convicted, the Magistrate, Alkali or Judge may convict him accordingly and in that case it shall not be necessary to frame a formal charge” OR in the words of Section 367(2) ACJL that “…the Court is satisfied that he has admitted the offence and shown no cause or no sufficient cause why sentence should not be passed, the Court shall proceed to sentence him.”

For ease of reference the proceeding of the trial Chief Magistrate Court of 1/11/2018 which shows unequivocal admission by the Appellant of the twin offences charged are reproduced below:
“COURT CLERK: Defendant in Court speaks Hausa.
COURT CLERK: M.M. Hassan affirmed to interpret.
Sergent Jamilu Umar for prosecution
PROSECUTION: It is a case of criminal breach of trust and cheating adjourned to today for hearing, but the defendant has met this morning with a view to change his plea for the allegation as made against him.
Signed:
Chief Magistrate
01-11-2018
DEFENDANT: That’s the position I am pleading guilty to the twin allegations of criminal breach of trust and cheating.
Signed:
Chief Magistrate
01-11-2018
PROSECUTION: We humbly apply for summary trial in pursuant to Section 367(2) ACJL 2017.
Signed:
Chief Magistrate
01-11-2018
COURT: Application granted I hereby proceed to try you summarily under Section 367(2) ACJL 2017 based on your plea of guilt.
Signed:
Chief Magistrate
01-11-2018
COURT: Do you have any cause to show why you should not be convicted based on your plea of guilt?
DEFENDANT: None
Signed:
Chief Magistrate
01-11-2018
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COURT: I hereby convict you Adamu Abubakar of the said twin offence of criminal breach of trust and cheating. 
Signed:
Chief Magistrate
01-11-2018
COURT: Do you have anything to say before sentence is passed against you?
CONVICT: I am pleading for the Court to temper justice with mercy, so as to enable me pay up the monies accrued to me in respect to the transaction between myself and the nominal complainant, I am as well assuring the Court that I shall never commit such an offence again in my life.
Signed:
Chief Magistrate
01-11-2018
COURT: Any record of previous conviction against the convict?
PROSECUTION: None
Signed:
Chief Magistrate
01-11-2018
COURT: In line to the pleadings by the convict and the remorseful posture by exhibited, I am of the view to hereby sentence you Adamu Abdullahi to six(6) calendar months imprisonment on each of the twin offences with an option of N30,000 (Thirty Thousand Naira) only fine on each of the twin offences, and in addition the convict shall pay for the nominal complainant a compensation of N550,000 (Five Hundred and Fifty Thousand Naira) only, failure to which the convict shall serve an additional Eighteen (18) months imprisonment as per the decision of the Court of Appeal in COP vs. Ganiyu Martins, and so be it.
Signed:
Chief Magistrate
01-11-2018.”

The lower Court was thus right when it held on this at page 21 of the record of Appeal that:
“We must all remind ourselves that throughout the length and breadth of the Appellant’s submission, whether on the face of the records at the lower Court or even in his written address of counsel it is not shown anywhere that the Appellant denied admitting the guilty before the trial Court or that he was compelled in one way or the other, to so admit involuntarily if that is what we have been presented with then suffice it to say and to do so boldly and courageously, that in deed the trial Chief Magistrate was on track and complied wholly with the provision of Section 125(7) & (8) and we so hold?”

Finally on the sole issue, learned counsel for the Appellant complained on the award of term of imprisonment in lieu of compensation by the learned trial Magistrate. In defense, learned counsel for the Respondent referred us to the wide discretion exercisable by a Judex under the provision of Section 330 ACJL Kaduna State. Of great relevance is the provision of Section 330(1)(a) which does not limit the discretion to award compensation even if as in the instant case a term of imprisonment is imposed in lieu of payment of compensation:
“330(1) A Court may, within the proceedings or while passing judgment, order the Defendant or convict to pay a sum of money:
(a) as compensation to any person injured by the offence, irrespective of any other fine or other punishment that may be imposed or that is imposed on the Defendant or convict where substantial compensation is in the opinion of the Court recoverable by civil suit;
(b) order for compensation may be made under this Section irrespective of the fact that no fine has been imposed on the Defendant in the judgment.”

Here again, the lower Court was right when it affirmed the decision of the learned trial Magistrate in this respect and held at page 22 of the record of appeal that:
“What else can we say here by a community reading of the above provision and the entire Section 330, it is obvious that a very wide latitude has been given to trial Judges to exercise lots of discretion on the issue of compensation really like we stated earlier care must be taken in interpreting our relatively young ACJL of Kaduna State 2017…”

From all of the above, the only issue in this appeal is resolved against the Appellant. This appeal lacks merit and it is accordingly dismissed.

The judgment of the High Court of Justice of Kaduna State in Appeal No. KDH/KAD/45CA/2018 delivered on 6/06/2018 by Coram: Honourable Justice K. Dabo and Hon. Justice L. D. Aba is hereby affirmed.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother, Owoade, JCA. I agree with and adopt as mine the finding and conclusion reached in the lead judgment that this appeal lacks merit. I also dismiss it and affirm the judgment of the lower Court delivered on 6th June, 2018 in Appeal No. KDH/KAD/45/2018.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

S. O. IKANI, ESQ. For Appellant(s)

JACOB IFERE, ESQ. For Respondent(s)