ALHAJI GANIYU MARTINS v. COMMISSIONER OF POLICE(2005)

ALHAJI GANIYU MARTINS v. COMMISSIONER OF POLICE

(2005)LCN/1689(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of February, 2005

CA/K/69/99

RATIO

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 78 OF THE PENAL CODE

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 to or in substitution 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 conviction. See Tsofoli v. Commissioner of Police (1971) 1 All NLR 338 at 341; NSCC (Vol.7) 330 at 333. In other words what determines the limit of the amount of compensation to be ordered by any criminal court, is the jurisdiction of that court to try the accused for the offence for which the accused was convicted. PER MOHAMMED, J.C.A.

COURT: POWER OF THE COURT TO MAKE AN ORDER FOR THE PAYMENT OF COMPENSATION

JUSTICES

MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

KUDIRAT MOTONMORI OLATOKUNMBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

Between

ALHAJI GANIYU MARTINS Appellant(s)

AND

COMMISSIONER OF POLICE Respondent(s)

MOHAMMED, J.C.A. (Delivering the Leading Judgment): 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.
(ii) When suspicion no matter how grave cannot ground conviction.
2. Error in law
The court erred in law when it affirmed the decision of the learned trial Chief Magistrate shifting the burden of proving his innocence on the appellant.
Particulars of error
(i) When the law is that the burden is on the prosecution to prove the guilt of the accused person beyond all reasonable doubt.
(ii) When there was nothing tangible said by the prosecution witnesses for the accused person to defend.
3. Error in law
The court erred in law when it affirmed the award of compensation by the learned Chief Magistrate beyond his monetary jurisdiction.
Particulars of error
(i) When the monetary jurisdiction of a Chief Magistrate in Kano is N30,000.00
(ii) When it was not clear from the record the basis upon which the learned trial Chief Magistrate based his compensation of N753,076.85k which he awarded.
4. Misdirection in law
The Kano State High Court Appeal misdirected itself in law when it failed to make any categorical order on ground 3 of the appellant’s grounds of appeal before it.
Particular of misdirection
(i) When it is the finding of the court that there is merit in the ground complained about.
5. Error in law
The Kano State High Court Appeal Division erred in law when it held that the learned trial Chief Magistrate evaluated the cross-examination of the prosecution witnesses and the evidence of the appellant.
Particulars of error
(i) When it is clear from the record from the trial court that the learned trial Chief Magistrate hid under that out dated phrase of ‘I believe’ and ‘I do not believe’.
ii. When throughout the judgment the learned trial Chief Magistrate made only passing statements in respect of the evidence of the appellant and the cross-examination of the prosecution witnesses.”
It cannot be disputed that in none of the 5 grounds of appeal quoted in this judgment, did the appellant complain of the action of the court below in relying solely on the appellant’s statement before the police and the agreement between the appellant and the complainant company in’ affirming the conviction of the appellant. It is quite easy therefore to see that the 1st issue in the appellant’s brief complaining on the alleged reliance by the court below on his statement before the police and the agreement exhibit ‘E’, does not in fact arise from any of the grounds of appeal filed by the appellant. That issue is entirely standing on its own without any ground of appeal supporting it. This appeal cannot therefore be determined on it. See Opara v. Omolu (2002) 10 NWLR (Pt. 774) 177 at 189 190; Attorney-General, Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646 and Ehot v. State (1993) 4 NWLR (Pt. 290) 644 at 665.
The second issue for determination in the appellant’s brief of argument is also vague although the lone issue framed in the respondent’s brief of argument, no doubt is derived from ground 3 of the appellant’s grounds of appeal and is therefore a valid issue. However, there is no issue for determination which was distilled from any of the 4 remaining grounds of appeal which by law are deemed to have been abandoned by the appellant. See Atunrase v. Phillips (1996) 1 NWLR (Pt. 427) 637; Dieli v. Iwuno (1996) 4 NWLR (Pt. 445) 622 and Effiong v. State (1998) 8 NWLR (Pt.562) 362. On these authorities, I have no option than to hold that grounds 1, 2, 4 and 5 of the grounds of appeal on which no issues have been formulated have been abandoned by the appellant.
The deficiency observed in the appellant’s brief of argument does not end with the 4 grounds of appeal deemed abandoned and the 1st issue for determination which does not arise from any of the 5 grounds of appeal filed by the appellant. It appears even the 2nd issue for determination in the appellant’s brief of argument is also defective as it does not relate to the judgment of the Kano State High Court sitting in its appellate jurisdiction being appealed against. Although I have earlier in this judgment quoted that issue, even at the expense of repetition, I shall quote it again for the purpose of clarity. That issue reads-
“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?”
The complaint of thy appellant in this issue strictly relates to an appeal session only. The court whose appeal session the appellant is complaining against in the issue has not been named in the issue. This omission is certainly fatal to the competence of the issue because the issue is expected to be related to the decision of the court of law being appealed against. See Obasanjo v. Yusuf (2004) 9 NWLR (pt 877) 144 at 177.
Although the two issues in the appellant’s brief of argument are defective and therefore cannot form the basis for the determination of this appeal, the fact that the respondent has formulated a correct and competent issue from ground 3 of the appellant’s grounds of appeal, I shall proceed to determine the appeal on the respondent’s sole issue which 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 .
The complaint of the appellant in ground 3 of his grounds of appeal from which the present issue was formulated is that the amount of compensation awarded by the learned trial Chief Magistrate to the tune of N753,075.85 is far above the limit of the monetary jurisdiction of a Chief Magistrate Court under section 13(c) of the Magistrate’s Court Law of Kano State. Learned counsel to the appellant argued that although section 365 of the Criminal Procedure Code and section 78 of the Penal Code relied upon by the lower court in affirming the decision of the trial Chief Magistrate court did not limit the monetary jurisdiction of the trial Chief Magistrate Court, it is contrary to section 13 of the Magistrates Courts Law of Kano State.
For the respondent however, it was submitted that the relevant law governing the payment and award of compensation is contained in sections 78 of the Penal Code and section 365 of the Criminal Procedure Code. That section 13(c) of Kano State Magistrates Court Law is a provision that relates to civil jurisdiction of the magistrates and not to their criminal jurisdiction. Learned counsel pointed out that since the present case arose from the exercise of criminal jurisdiction, section 13(c) of the Magistrates Court Law does not apply. Learned counsel observed that although section 365 of the Criminal Procedure Code was based on section 545 of the Indian Criminal Procedure Code of 1899 which made provision for the payment of compensation out of the fine imposed by a court, in section 365 of the Criminal Procedure Code, the payment of compensation was made in addition to the payment of fine and provided no limit to the amount of compensation that may be awarded. That section 78 of the Sudan Penal Code on which section 78 of the Penal Code was based also provided for the payment of compensation out of the fine imposed by a court while section 311 of the Sudan Criminal Procedure Code had limited the amount of compensation that might be imposed by a court not to exceed twice the amount that might be imposed by that court as a fine. That since the law makers in Nigeria in considering the provisions of the Penal Code and the Criminal Procedure Code had similar codes in Sudan and India as their guide, the decision to impose no limit to the amount of compensation under section 78 of the Penal Code and section 365 of the Criminal Procedure Code, was deliberate. Learned counsel therefore concluded that the clear provisions in the sections should be given their natural meaning as stated in Nafiu Rabiu v. State (1980) 8-11 SC 130, (1980) NSCC (Vo1.l2) 291 and the case of Adah v. NYSC (2001) 1 NWLR (Pt. 693) 65 at 79 – 80.
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 a 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 the 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 Magistrate Courts 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 powers 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 to or in substitution 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 conviction. See Tsofoli v. Commissioner of Police (1971) 1 All NLR 338 at 341; NSCC (Vol.7) 330 at 333. In other words what determines the limit of the amount of compensation to be ordered by any criminal court, is the jurisdiction of that court to try the accused for the offence for which the accused was convicted.

The provisions of section 365 of the Criminal Procedure Code also empowered the trial Chief Magistrate Court or any other court for that matter exercising criminal jurisdiction under the Criminal Procedure Code to make an order for the payment of compensation in addition to fine after convicting an accused person tried by such court. Section 365 states:
“365(1) 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 a fine a convicted person shall pay a sum
(a) in defraying expenses properly incurred in the prosecution;
(b) in compensation in whole or part for the injury caused by the offence committed, where substantial compensation is in the opinion of the court recoverable by civil suit;
(c) in compensating an innocent purchaser – of any property in respect of which the offence was committed who has been compelled to give it up;
(d) in defraying expenses incurred in medical treatment of any person injured by the accused in connection with the offence.
(2) If the fine referred to in sub-section (1) is imposed in a case which is subject to appeal, no such payment additional to the fine shall be made before the period allowed for presenting the appeal has elapsed or, if an appeal is presented, before the decision on the appeal.”
While the power of a criminal court to award compensation under section 78 of the Penal Code is to be exercised against an accused person who was tried and convicted for an offence under the Penal Code, the same criminal court may exercise the same power under section 365(1) of the Criminal Procedure Code in the trial and conviction of an accused person under any law for time in force where a fine had been imposed as a punishment for the offence after conviction. In other words, the award of compensation against an accused person convicted under any law for an offence is always in addition to a fine imposed as a punishment for the offence. That is under section 365, there is no option to the court, to impose the award of compensation against an accused person in substitution to a fine as contained under section 78 of the Penal Code.
What is significant from the wordings of the provisions of section 78 of the Penal Code and section 365 of the Criminal Procedure Code respectively on the powers of all criminal courts to award compensation against an accused person after conviction, is that no limit to the amount of compensation was specified for the various categories of criminal courts. The words used in the provisions of the two sections of the two statutes are quite plain. It is trite that in the interpretation of the provisions of statutes such as section 78 of the Penal Code and section 365 of the Criminal Procedure Code, where the words used in the statute are direct and straight forward and unambiguous, the plain words as used in the statute must be construed on the ordinary plain meaning of the words. See African Newspapers of Nigeria Ltd. & Ors. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137. The duty of the court in situation as in the present appeal is quite clear. If the language used by the lawmakers in the statutes is quite clear and explicit, the court must give effect to the words because in such situation, the words of the statute also speak of the intention of the lawmakers. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; Macaulay v. R.Z.B. Austria (2003) 18 NWLR (Pt. 852) 282 at 326 and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 at 180. Therefore, it is my view that to read any limit to the amount of compensation to be awarded by any criminal court under section 78 of the Penal Code and section 365 of the Criminal Procedure Code, would amount to doing violence to the plain provisions of the sections of the laws. Thus, on the correct interpretation of section 78 of the Penal Code and section 365(1)(b) of the Criminal Procedure Code, the award or order of compensation made by the trial Chief Magistrate Grade 1 in the sum of N753,075.85 against the appellant after convicting him of the offence of criminal breach of trust under section 314 of the Penal Code, was quite in order having been made within the powers of that court under the law. Consequently, the lower court was also right in affirming that decision in its judgment delivered on 16-12- 1998.
Although the appellant’s issue No.1 cannot form the basis for the determination of this appeal for it not being derived from any of the appellants grounds of appeal 4 of which are deemed abandoned, this being a criminal appeal and the need to give the appellant a fair hearing inspite of the carelessness of his counsel in formulating the issues for determination of the appeal in the appellant’s brief of argument, on a very careful examination of the record of the appeal, I am quite satisfied that from the evidence on record, the conviction of the appellant under section 314 of the Penal Code was quite in order. This is because apart from complaining on the reliance by the court below on his own statement to the police which he wrote himself partly admitting the amount of money he was prepared to pay and the admission in evidence of same statement which his own counsel did not oppose during his trial, coupled with the agreement exhibit ‘E’ which the appellant himself voluntarily signed with the complainant, there is no serious argument at all in the appellant’s brief of argument that his conviction was wrong. The position of the appellant was further compounded by the fact that he was appealing against two concurrent findings of conviction and sentence by the trial Chief Magistrate court and the lower court.
The attitude of this court and indeed of the Supreme Court as well in appeal against concurrent decisions of lower courts is well settled. It is that an appellate court will not interfere with the concurrent findings of the lower courts on issues of facts except there is established a miscarriage of justice or a violation of some principles of law or procedure. Several cases that come to mind on this state of the law include National Insurance Corporation of Nigeria v. Power and Industrial Engineering company Ltd. (1986) 1 NWLR (Pt. 14) 1 at 36; Enang v. Adu (1981) 11 – 12 SC 25 at 42; Nwagwu v. Okonkwo (1987) 3 NWLR (Pt. 60) 314 at 325 and Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 at 574. In the instant case, there is no even the slightest suggestion that there was any miscarriage of justice or a violation of substantive law or of procedure, to warrant any interference with the judgment of the court below now on appeal.
On the whole therefore, this appeal has failed and the same is hereby dismissed. The judgment of the lower court affirming the conviction, sentence and order of compensation against the appellant by the trial Chief Magistrate Court, are hereby affirmed.

ALAGOA, J.C.A.: I have had the benefit of reading in advance the leading judgment of my learned brother, Mahmud Mohammed, JCA and I agree that this appeal lacks merit and should be dismissed. Briefly, the facts are that the appellant was arraigned, tried, convicted and sentenced by a Chief Magistrate Court, Kano for criminal breach of trust punishable under section 314 of the Penal Code. The sentence passed was imprisonment for two years with an option of fine. Additionally, the appellant was ordered to pay the sum of N753,075.85 as compensation to his employers. His appeal to the Kano State High Court in its appellate jurisdiction was dismissed and he further appealed to this court on five grounds of appeal from which two issues for determination by this court were distilled. The grounds and the issues distilled there from by the appellant in his brief are fully reproduced in the leading judgment and need no further reproduction here. Suffice it to say that issue in the appellant’s brief which is as to whether the Kano State High Court Appeal session was 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 (appellant’s employers) and the appellant in affirming the appellant’s conviction before the Magistrate Court, neither arises from grounds 1 and 2 of the appellant’s grounds of appeal as he contends nor from any of the remaining three grounds of appeal filed by the appellant.
On issue 2 it is observable that the only issue contained in the respondent’s brief pertains to ground 3 of the appellant’s grounds of appeal. The question here is as to whether the sum of N753,075.85 awarded as compensation against the appellant was in excess of the jurisdiction of the learned trial Chief Magistrate. Under section 13(c) of the Magistrate Court Law of Kano State which is with respect to Civil Proceedings the jurisdiction would appear to have been exceeded by the learned Chief Magistrate but the entire proceedings here were criminal in nature and section 13(c) of the magistrates law does not therefore apply. The appellant was convicted under section 314 of the Penal Code for criminal breach of trust. Neither section 78 of the Penal Code nor section 365 of the Criminal Procedure Code prescribes a limit to the amount of compensation, which a trial Chief Magistrate can award in addition to a fine after conviction by the court.
The appellant has not complained against any miscarriage of Justice or violation of some principles of law or procedure and the Supreme Court has held in Iheaguta U. Nwagwu & Anor. v. Ohazurike Okonwo & 3 Ors. (1987) 3 NWLR (Pt. 60) following its earlier decision in the case of Chinwendu v. Mbamali (1980) 3-4 SC 31 that concurrent findings of fact will hardly be set aside unless there is some miscarriage of justice or violation of some principles of law or procedure. See also – Emmanuel Okpala Igwego & 4 Ors. v. Fidelis Osukwu Ezeugo (1992) 6 NWLR (Pt. 249) page 561. In fact the attitude of the Supreme Court in a plethora of cases decided by the apex court on concurrent findings of lower courts on issues of fact is that unless those findings are:
(a) found to be perverse;
(b) not supported by the evidence;
(c) reached as a result of a wrong approach to the evidence;
(d) reached as a result of wrong application of a wrong principle of substantive law or procedure the Supreme Court, even if disposed to come to a different conclusion on the printed evidence will not interfere with the concurrent findings of lower courts on issues of facts.
From the appellant’s brief, he does not in my view appear to have complained of these. It is for this reason and the fuller reasons contained in the leading judgment that I also hold that the appeal fails and is accordingly dismissed. The judgment of the lower court affirming the conviction, sentence and order of compensation by the trial Chief Magistrate Kano are hereby accordingly affirmed.

KEKERE-EKUN, J.C.A.: This is an appeal against the judgment of the Kano State High Court sitting in its appellate jurisdiction delivered on 16/12/98 affirming the appellant’s conviction and sentence by the Chief Magistrate Court No.5, Gyadi Gyadi, Kano as contained in its judgment delivered on 15/7/97. The appellant was charged before the Chief Magistrates Court for the offence of criminal breach of trust by a servant contrary to section 314 of the Kano State Penal Code. He was found guilty of the offence and sentenced to two years imprisonment or a fine of N5,000.00. In addition, he was ordered to pay compensation to the complainant in the sum of N753,075.85.
In his brief of argument, the appellant formulated two issues for determination in this appeal distilled from the five grounds of appeal contained in his notice of appeal at pages 73-74 of the record. The grounds of appeal without their particulars are as follows:
1. The Kano State Appeal Division erred in law and in fact when it affirmed the decision of the learned Chief Magistrate in believing the evidence of PW1.
2. The court erred in law when it affirmed the decision of the learned trial Chief Magistrate shifting the burden of proving his innocence to the appellant.
3. The court erred in law when it affirmed the award of compensation by the learned Chief trial Magistrate beyond his monetary jurisdiction.
4. The Kano State High Court misdirected itself in law when it failed to make any categorical order on ground 3 of the appellant’s grounds of appeal before it.
5. The Kano State High Court Appeal Division erred in law when it held that the learned trial Chief Magistrate evaluated the cross-examination of the prosecution witnesses and the evidence of the appellant.
The two issues formulated by the appellant read thus:
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 the 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 [the] Chief Magistrate?”
On a close examination of the issues however it is observed that issue No.1 does not arise from any of the grounds of appeal. It is trite that the issues for determination must be related to and confined to the complaint in the ground of appeal. See: Ojo v. Victino Fixed Odds Ltd. (2001) FWLR (42) 98 at 103 D; Shuaibu v. Union Bank of Nigeria (2000) 9 NWLR (Pt. 673) 469, (2001) 1 SCNJ 1. When this requirement is not met the issue so formulated is incompetent and liable to be struck out or discountenanced by the court. See Igunbor v. Afolabi (2001) 11 NWLR (Pt.723) 148, (2001) 5 SC (Pt. 1) 105 at 111 lines 20-22. In light of the above authorities I hold that issue No.1 is incompetent. It is accordingly struck out. No issues were formulated from grounds 4 and 5 of the grounds of appeal. Those grounds are therefore deemed abandoned and accordingly struck out.
The only issue for determination in this appeal therefore is issue No.2, which arises from ground 3 of the grounds of appeal. Learned counsel to the respondent re-formulated the appellant’s second issue at page 4 of his brief. I am of the view that the respondent has succinctly distilled the second issue for determination, which I adopt as follows: 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 N753,076.85.
It is the contention of the appellant that the amount of compensation awarded by the learned trial magistrate is beyond the monetary jurisdiction of a Chief Magistrate in Kano State. He relied on section 13(c) of the Magistrates Court Law of Kano State Cap. 89, Laws of Kano State, 1991, which limits the monetary jurisdiction of a Chief Magistrate to N30,000.00. He argued that the power of a magistrate to order the payment of compensation in addition to a fine upon conviction of any offence under the Penal Code (PC) as provided for in section 78 of the PC and section 365 of the Criminal Procedure Code (CPC) is limited by the monetary jurisdiction as set out in the Magistrate Court Law of Kano State. He conceded that neither the Penal Code nor the Criminal Procedure Code limits the amount of compensation that a magistrate may award. He argued that this is because the laws are applied not only by the magistrates’ courts but also by the High Courts, which are courts of unlimited jurisdiction. He contended that the power of the court to award compensation under section 78 of the PC is limited in the same way as its power to impose a fine. He relied on C.Y. Tebu v. Police (1968) NNLR 38.
In the respondent’s brief, learned counsel argued that section 13(c) of the Magistrates Court Law of Kano State relates and applies to the civil jurisdiction of magistrates only. He further traced the historical evolution of the laws under consideration and contended that while section 365 of the CPC is modelled on section 545 of the Indian Criminal Procedure Code and section 78 of the PC is similar to section 77B of the Sudan Penal Code, the law makers made clear and distinct departures from these laws in enacting the Nigerian versions. He submitted that the clear intention of the lawmakers with regard to section 78 of the PC and section 365 of the CPC was to provide unlimited power to the court to award compensation to the victim of a crime, distinct from its power to impose a fine upon conviction for the offence. He urged this court to apply the golden rule of interpretation as held in: Nafiu Rabiu v. The State (1980) 8-11 130, (1980) NSCC (Vol. 12) 291 and Adah v. NYSC (2001) 1 NWLR (693) 65 at 78-80.
Having carefully considered the submissions of both learned counsel it is necessary to set out the provisions of section 78 of the PC and section 365 of the CPC.
Section 78 of the PC provides:
“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 to or in substitution for any other punishment. ” (Italics mine)
Section 365(1) of the CPC provides:
“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 a fine a convicted person shall pay a sum – (a) in defraying expenses properly incurred in the prosecution;
(b) 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;
(c) in compensating an innocent purchaser of any property in respect of which the offence was committed who has been compelled to give it up;
(d) in defraying expenses incurred in medical treatment or any person injured by the accused in connection with the offence.” (Italics mine)
On the well-established canon of statutory interpretation in our jurisprudence, His Lordship Tobi, JSC in the case of Araka v. Egbue (2003) 17 NWLR (Pt.848) 1, (2003) 7 SC 75 at 85 lines 15-25 had this to say:
“The duty of the court is to interpret the words contained in the statute and not go outside the words in search of an interpretation which is convenient to the court or to the parties or one of the parties. Even where the provisions of a statute are hard in the sense that they will do some inconvenience to the parties, the court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to travelling outside the statute on a voyage of discovery. This court cannot embark on such a journey.
The primary function of the court is to search for the intention of the lawmaker in the interpretation of a statute. Where this is clear and unambiguous, as it is in this case, the court in the exercise of its interpretative jurisdiction must stop where the statute stops. ” (Italics mine).
See also: Niger Progress Ltd. v. North-East Line Corporation (1989) 4 SC (Pt. 11) 64 at 85 D.
Applying these authorities to the case in hand I am of the view that ‘the underlined portion of section 78 of the PC above is clear and unambiguous. It provides that compensation may be awarded in addition to any other punishment. There is no limit in the provision of the amount of compensation that may be awarded. The provision must therefore be given its ,clear and ordinary meaning. Section 365 of the CPC as expressly stated relates to a criminal court It is equally clear that the order for the payment of compensation is in addition to any fine that might be imposed. Furthermore, subsection (b) clearly shows that substantial compensation was within the contemplation of the lawmakers. This section also does not contain any limitations regarding the amount of compensation that may be awarded. There is therefore no justification for going outside these statutes to seek limitation on the court’s power from a statute that regulates the civil jurisdiction of the magistrates’ courts i.e. the Magistrates Court Law of Kano State. As stated by Tobi, JSC in Araka v. Egbue (supra) “the court in the exercise of its interpretative jurisdiction must stop where the statute stops.”
I therefore hold that there were no limitations on the trial magistrate’s power to award compensation in the circumstances of this case, either under section 78 of the PC or section 365 of the CPC. Accordingly, I resolve the only issue in this appeal against the appellant.
For these and the more detailed reasons contained in the lead judgment of my learned brother, Mahmud Mohammed, JCA, I find no substance in this appeal. I also dismiss the appeal and endorse all the consequential orders contained in the judgment.