DANIEL v. A. Y. A. AGRO ALLIED (NIG) LTD & ANOR (2022)

DANIEL v. A. Y. A. AGRO ALLIED (NIG) LTD & ANOR

(2022)LCN/16366(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/YL/217/2019

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

AMOS NUHU DANIEL APPELANT(S)

And

1. A. Y. A. AGRO ALLIED NIG. LTD 2. ALHAJI YARO ADAMU RESPONDENT(S)

RATIO:

ONE OF THE PRIMARY DUTIES OF A COURT IS TO SETTLE DISPUTES BETWEEN PARTIES

One of the primary duties of a Court is to settle disputes between parties. This in most cases entails listening to both parties side of events, examining all the documents and oral testimony they present, analyzing the issues they submit to the Court and making pronouncement on those issues, which would serve as a basis for the resolution of the matter one way or another. Where parties feel they were not heard or some issues which they believe is germane to their case is not given any attention by the Court, they may feel hard done by, with good reason and where such decision is examined by a higher/appellate Court and it is found that miscarriage of justice occurs as a result of failure to pronounce on issues, the decision would be set aside. JAMILU YAMMAMA TUKUR, J.C.A.

SENTENCING IS THE SAME THING AS PUNISHMENT

After delivery of judgment, if it is found that the Defendant committed the offence, what follows is conviction, and after that, is award of sentence, which is the punishment for the crime as set out by law. Sentencing is the same thing as punishment. Importantly, punishment to be imposed on a convict is to be in accordance with the law creating the offence. The Court has the discretion to impose a lesser sentence except the sentence prescribed is a mandatory one like in capital offences. JAMILU YAMMAMA TUKUR, J.C.A.

THE POSITION OF LAW ON THE FAILURE TO PRONOUNCE ON ALL ISSUES

The Supreme Court in the case of BRAWAL SHIPPING (NIG.) LIMITED v. F. I. ONWADIKE CO. LTD (2000) FWLR (Pt. 23) 1254, (2000) 11 NWLR (Pt. 678) 387, (2000) 6 SCNJ 508, per Uwaifo JSC, clearly stated the full position of the law on failure to pronounce on all issues thus:
“It is no longer in doubt that this Court demands of, and admonishes the lower Court to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to miscarriage of justice and, certainly, will have that result if the issues not pronounced upon are crucial.” In this case, the Court below did what it had to do pronounce on both issues…”
See ADEGBUYI v. APC & ORS (2014) LPELR-24214(SC), SIFAX (NIG) LTD & ORS v. MIGFO (NIG) LTD & ANOR (2018) LPELR-49735(SC) and CHUKWU v. FRN (2020)LPELR-50292(CA). JAMILU YAMMAMA TUKUR, J.C.A.

MISCARRIAGE OF JUSTICE IS A FAILURE OF JUSTICE

Miscarriage of justice is failure of justice. It connotes a situation wherein the result of a trial or appeal is not the logically sound and valid aggregate of the evidence led therein and the principles of law applicable to said evidence. The Apex Court reiterated this principle of law in the case of NWANKWOALA v. FRN (2018) LPELR-43891(SC)(P. 20, Paras. A-D) where per RHODES-VIVOUR, J.S.C., it held thus:
“Miscarriage of justice is a failure of justice. There is a miscarriage of justice where there are grave or serious errors in the proceedings asto make the proceedings fundamentally flawed. It means failure of the Court to do justice.”
See INTERDRILL (NIG) LTD & ANOR v. UBA PlC (2017) LPELR-41907(SC), OKE & ANOR V. MIMIKO & ORS (2013) LPELR-21368(SC) AND GBENEYEI & ORS v. ISIAYEI & ORS (2014) LPELR-23216(CA). JAMILU YAMMAMA TUKUR, J.C.A.

THE POSITION OF THE LAW ON AWARD OF COMPENSATION IN CRIMINAL CASES

The position of the law on award of compensation in criminal cases to Victims of the crime is clear and is principally hinged on the securing of conviction for the offence charged. The Supreme Court in the case of MARTINS v. COP (2012) LPELR-9821(SC) (Pp 17 – 17 Paras A – C), while examining the import of Section 78 of the Penal Code, which makes provision for compensation of victims of crimes convicted for, held thus:
“The Section provides: “S.78: Any person who is convicted of any offence under the 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.” The Section does not affect or alter the jurisdiction of any Magistrate in civil or criminal proceedings. Once the Magistrate convicts the accused, S.78 of the Penal Code places no limit on the amount of compensation to the victim of the offence charged. JAMILU YAMMAMA TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Taraba State, Jalingo Division, sitting on appeal in APPEAL NO. TRSJ/63CA/2018, delivered on 22nd July, 2019 by the learned Justices F.B. Andetur (Presiding), I.M. Sambo and A.B. Abbare of the lower Court in favour of the Respondents.

The material facts of the appeal leading to the instant appeal before this Court is that the Appellant was convicted by the Chief Magistrate Court Jalingo via a Judgment delivered on 22nd March, 2018, for the offence of criminal misappropriation punishable under Section 309 of the Penal Code, and consequently sentenced to 6 months imprisonment with an option of N6,000.00 fine. Appellant was also ordered to pay compensation to the Respondents in the sum of N6,309,000.00. The Appellant dissatisfied with the decision of the Chief Magistrate Court, appealed to the lower Court via a Notice of Appeal filed on 5th April, 2018 seeking the following reliefs:
1. An Order allowing this appeal for being meritorious.
2. An Order setting aside the judgment for the trialMagistrate Court and further discharging and acquitting the Appellant of the offence of criminal misappropriation.
3. An Order striking out case no. CMCJ45C/2016 for lack of jurisdiction by the trial Magistrate’s Court or alternatively;
4. An Order dismissing case no. CMCJ/45C/2016 for lack of merit. (pages 160 -163 of the record of Appeal).

The parties involved in the appeal before the lower Court exchanged all requisite processes and, in a judgment, delivered on 22nd July, 2019 the lower Court affirmed the judgment of the trial Magistrate Court and dismissed the appeal for lacking in merit.

Dissatisfied with the judgment of the lower Court, the Appellant appealed the judgment via a Notice of Appeal filed on 20th August, 2019. The extant amended Notice of Appeal was filed on 29th June, 2021 and deemed properly filed and served on 22nd September, 2021.

The Appellant`s Brief of Argument was dated and filed on 1st March, 2022, but deemed properly filed on 4th April, 2022. The Appellant’s Reply Brief was dated 29th March, 2022 and filed on 1st April, 2022 but deemed as properly filed on 4th April, 2022.Appellant’s counsel formulated four issues for determination to wit:
1. Whether the entire proceedings and resultant judgment of the lower Court are not nullities in law and thus liable to be set aside by this Honourable Court? (Grounds 10 & 11)
2. Whether the lower Court was right in law to have dismissed Appellant’s appeal and affirmed his conviction for the offence of criminal misappropriation of 626 agro chemicals by the Chief Magistrate’s Court, Jalingo, regard being had to the nature of evidence adduced by the Respondents at the trial? (Grounds. 1, 5, 6, 7 and 14).
3. Whether the lower Court was right in law to have affirmed the sum of N6,309,200 awarded to the Respondents by the trial Court as compensation? (Ground 8).
4. Whether it was correct in law for the lower Court to affirm the award of the sum of N6000 as fine against the Appellant by the trial Magistrate even when the said trial Magistrate exceeded his jurisdiction to award same? (Ground 9).

Respondents’ Brief of Argument was dated and filed on 14th March, 2022, but deemed as properly filed on 4th April, 2022.

Respondents’ counsel adopted the issuesas submitted by Appellant’s counsel.

I will also proceed to determine this appeal on the issues formulated by the Appellant for convenience sake.

ISSUE ONE:
WHETHER THE ENTIRE PROCEEDINGS AND RESULTANT JUDGMENT OF THE LOWER COURT ARE NOT NULLITIES IN LAW AND THUS LIABLE TO BE SET ASIDE BY THIS HONOURABLE COURT? (GROUNDS 10 & 11)

Learned counsel for the Appellant argued that the learned Judges of the lower Court erred in law when they failed to consider and pronounce on issues 3, 4 and 5 raised and argued by the Appellant in his appeal before the lower Court. He referred to the cases of Emeje v. Positive (2009) ALL FWLR (Pt.452) 1056 at 1063 Ratio 11 and Karaye v. Wike &Ors (2019) LPELR-49382(SC) at pages 10-16, para-C.

Learned counsel asserted that issues 3, 4 & 5 capture the substance of the appeal before the lower Court and the lower Court was wrong to have dismissed the appeal on the merit without considering the issues, as the failure to consider the issues constitute a breach of the Appellant’s right to fair hearing, particularly the audi alteram patem rule. He relied on the cases of FRN v. Akabueze(2010) 17 NWLR (Pt1223) 525 and Chukwuma v. FRN (2011) 13 NWLR (Pt.1264) 391. For clarity, the issues in question, as captured in the Appellant’s brief are hereby reproduced thus:
‘’Issue 3: Whether regard being had to the nature of evidence adduced by the Respondents on record, the offence of criminal misappropriation of 626 Agro Chemicals was made out against the Appellant beyond reasonable doubt to warrant his conviction by the trial Magistrate’s Court?’’
‘’Issue 4: Whether the award N6,309,200 as compensation by the trial Magistrate’s Court is not baseless in fact and perverse in law to warrant its being set aside by this Honourable Court?’’
‘’Issue 5: Whether the learned trial Magistrate has the jurisdiction in law to award the sum of N6000 as fine against the Appellant?’’ (page 187-188 of Record of Appeal).

Counsel submitted that the failure of the lower Court to deliver their judgment within the 90 days as prescribed by the Constitution, resulted in miscarriage of justice against the Appellant, as the learned Judges of the lower Courterroneously found that five of the Respondent Witnesses, that is the PW1 – PW5 at the trial Magistrate Court gave the exact same testimony against the Appellant and secondly, that the lower Court misapprehended the burden of proof by applying that of balance of probability instead of proof beyond reasonable doubt as manifested in the lower Court’s holding that the Appellant’s failure to present evidence to refute that of the Respondents’ witnesses before the trial Magistrate Court.
He relied on Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended),Sections 134 & 135 (1) & (2) of the Evidence Act 2011, Adighije v. Nwaogu (2011) ALL FWLR (Pt.559) 1006 and Nwokoro&Ors v. Onuma&Ors (1990) LPELR 2125 (SC) page 19 paras A-E.

Counsel argued that the learned Judges of the lower Court approbated and reprobated when after having held that the Appellant’s issue no.2, that is ‘’whether at the close of evidence by the prosecution, the trial Magistrates’ Court was right in law to have held that a prima facie case of criminal misappropriation was made out againstthe Appellant and further frame a charge of criminal misappropriation against him, regards being had to the nature of evidence adduced by the Respondents?’’, is answered in the negative, with the implication that there was no prima facie case of misappropriation made out against the Appellant, they went on to hold that issues 1 and 2 had been resolved in favour of the Respondents.

On the other hand, learned counsel for the Respondents argued that the duty of a Court to pronounce on all issues raised by parties is a general one and a Court is permitted to not pronounce on issues where other issues as presented by the parties or issues raised by the Court is sufficient to determine the issues in controversy between the parties.
He relied on OtuEkpenetu v. MfawaOfegobi& 3 Ors (2012) 15 NWLR (Pt.1323) at 283 paras D-F, BrawalNig Ltd v. Onwadike Ltd (2000) 2 SCNQR page 380 and Adebowale v. Ademola (2021) 4 NWLR (Pt.1767) page 399 at 402-404.

Learned counsel submitted that the learned Judges of the lower Court treated issues 3 and 4 in their determination of issue 2, because all the issues had to do with reception of evidence thateventually led to conviction, sentence and award of compensation against the Appellant. He asserted that the lower Court determined the appeal on the merit before dismissing it contrary to Appellant’s position, because the most vital issues for determination of the appeal were considered by the lower Court.

Counsel argued that the decision of the lower Court cannot be impugned on the grounds of delivery of judgment outside the 90 days period laid down in Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) because the exception contained in Subsection (5) of the same section applied to the facts of the appeal, as the Appellant did not suffer miscarriage of justice on account of the lower Court’s delay in delivering the decision, as the Court sat as an appellate Court who did not need to recall the demeanour of Witnesses. He referred to the cases of Imoh & Anor v. EFCC (2018) LPELR-46579 (CA), Owoyemi v. Adekoya (2003) 18 NWLR (Pt.852) 307, Denis Akoma & Anor v. Obi Osenwokwo & Ors (2014) LPELR-22885 (SC) and Dibiamaka & Ors v. Osakwe & Ors (1989) 3 NWLR (Pt.107) at 114.Counsel submitted that the learned Judges of the lower Court did not approbate and reprobate, rather they made an error in their bid to state that issue 2 was resolved in the positive, as from the whole judgment, it is clear that the lower Court agreed with the decision of the trial Court to the effect that a case of criminal misappropriation was made out against the Appellant.

In the reply brief, learned counsel for the Appellant submitted that the case of Otu Ekpenetu v. Mfawa Ofegboi & 3 Ors (2012) 15 NWLR (Pt. 1323) at 283 paras D-F, relied on by Respondents’ counsel to the effect that it is not mandatory for a Court to pronounce on all issues will not avail the Respondents as the Court in that case sat as a final Court, whereas the decision appealed against was made by an intermediate Court which is duty bound to consider and pronounce on all issues presented to it by parties.
He referred to the cases of Balogun & Anor v. Adegbenro & Anor (2018) LPELR-46990(CA) page 53 para. A and Edem v. Canon Balls Ltd & Anor (2005) LPELR-1007(SC) page 26 para. C.

Counsel further submitted that the arguments of Respondents counsel that the lower Court considered issues 3 and 4 on the basis that the issues were subsumed in issue 2 is not borne out by the records and cannot stand.

RESOLUTION OF ISSUE ONE
One of the primary duties of a Court is to settle disputes between parties. This in most cases entails listening to both parties side of events, examining all the documents and oral testimony they present, analyzing the issues they submit to the Court and making pronouncement on those issues, which would serve as a basis for the resolution of the matter one way or another. Where parties feel they were not heard or some issues which they believe is germane to their case is not given any attention by the Court, they may feel hard done by, with good reason and where such decision is examined by a higher/appellate Court and it is found that miscarriage of justice occurs as a result of failure to pronounce on issues, the decision would be set aside.
Thus, while it is highly desirable that an intermediate Court pronounce on all issues presented to it and expressly decide each issue one way or another, with cogent reasons for such decision, failure to so do will not automatically vitiate such decision or render it liable to a breach of fundamental right to fair hearing unless the Court fails to pronounce on a crucial issue which leads to a miscarriage of justice.
The Supreme Court in the case of BRAWAL SHIPPING (NIG.) LIMITED v. F. I. ONWADIKE CO. LTD (2000) FWLR (Pt. 23) 1254, (2000) 11 NWLR (Pt. 678) 387, (2000) 6 SCNJ 508, per Uwaifo JSC, clearly stated the full position of the law on failure to pronounce on all issues thus:
“It is no longer in doubt that this Court demands of, and admonishes the lower Court to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to miscarriage of justice and, certainly, will have that result if the issues not pronounced upon are crucial.” In this case, the Court below did what it had to do pronounce on both issues…”
See ADEGBUYI v. APC & ORS (2014) LPELR-24214(SC), SIFAX (NIG) LTD & ORS v. MIGFO (NIG) LTD & ANOR (2018) LPELR-49735(SC) and CHUKWU v. FRN (2020)LPELR-50292(CA).

A careful examination of the judgment of the lower Court reveals that the issues before the Court, that were allegedly not pronounced upon by that Court were issues 4 and 5, that is the issue of compensation and award of fine, respectively. Issue 1 which had to do with jurisdiction was comprehensively dealt with by the Court, while examining issue 2, which had to do with the making of a prima facie case, the lower Court also went into the pith of the appeal, that is whether the charge of criminal misappropriation was proved against the Appellant beyond reasonable doubt.

The issue of compensation which was allegedly not directly pronounced upon, did not my view result in miscarriage of justice because it is attached to the successful proof of the charge against the Appellant. It was derived from the provisions of Section 78 of the Penal Code Law of Taraba State 1997 that empowers the trial Magistrate Court to in appropriate cases order for compensation as part of the sentence of the Court upon conviction. See Tsofoli V. COP 1971 LPELR-3265 at 5-6 Paras A-A (SC). The issue of award of fine by the Magistrate Court beyond its jurisdiction, which also was alleged to have not been directly pronounced upon by the lower Court, is the subject of discourse under issue 4 and will be treated thereon.

There is no gainsaying the fact that Judges are obliged by the grundnorm to deliver their judgments within 90 days after the close of a case or hearing of an application. The foregoing is the clear import of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides thus:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of decision within seven days of the delivery thereof.”
Notwithstanding the above, Subsection (5) of that same Section 294 unequivocally limits where failure to deliver within the said time limit would vitiate a decision thus:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The straightforward meaning of the above provisions of the Constitution is that a mere delay in delivering judgment or delivery of judgment outside the 90 day period will not on its own invalidate the decision of the Court, unless it can be established on appeal that the Appellant suffered a miscarriage of justice as a result of the delay in delivering judgment. The Supreme Court in the case of AKOMA & ANOR v. OSENWOKWU & ORS (2014) LPELR-22885(SC) (Pp. 29-32, paras. F-A) per GALADIMA, J.S.C., held thus:
“Firstly, the fact that Section 294 (1) of the 1999 Constitution makes it mandatory for a Court to deliver its judgment within 90 days after final address, and that by Section 294 (5) of the same Constitution, a judgment will not be invalidated or nullified for non-compliance unless and until the Appellate Court considering such a complaint on appeal is fully satisfied that the appellant has shown that it had suffered a miscarriage of justice by such late delivery of judgment. Further the fact that in determining whether a miscarriage of justice has occasioned due to inordinate delay, the emphasis is not the length of time simplicities, but on the effect it produced in the mind of the Court, such as if the delay is found to have obviously alleged the Court’s perception, appreciation and evaluation of the cases and that it is Court would readily interfere.”
See ATUNGWU & ANOR V. OCHEKWU (2013) LPELR-20935(SC), LAROMEKE & ORS v. OMINI & ANOR (2018) LPELR-44152(CA) and SDV (NIG) LTD v. OJO & ANOR (2016) LPELR-40323(CA).

The logical question that flows from the above is whether the delay by the learned Judges of the lower Court in delivering its judgment resulted in the Appellant suffering a miscarriage of justice and the answer is in my view in the negative. I further subscribe to the view canvassed by learned counsel for the Respondent that the lower Court haven sat in its Appellate jurisdiction dealt with the records of the appeal before it and not circumscribe like a trial Court in taking into or recollecting the demeanour of witnesses that appeared before it, before arriving at its decision. I hold the view that the delay did not occasion a miscarriage of justice to vitiate the judgment of the lower Court, as the crux of the appeal, that is whether the case of criminal misappropriation punishable under Section 309 of the Penal Code was proven against the Appellant beyond reasonable doubt at the Magistrate Court was fully examined and the decision not to fully examine the issue of compensation was based on the principle that a Magistrate may award compensation if the crime is proven.

As a consequence of the above, this issue is resolved against the Appellant.
ISSUE TWO:
WHETHER THE LOWER COURT WAS RIGHT IN LAW TO HAVE DISMISSED APPELLANT’S APPEAL AND AFFIRMED HIS CONVICTION FOR THE OFFENCE OF CRIMINAL APPROPRIATION OF 626 AGRO CHEMICALS BY THE CHIEF MAGISTRATE’S COURT, JALINGO, REGARD BEING HAD TO THE NATURE OF EVIDENCE ADDUCED BY THE RESPONDENTS AT THE TRIAL? (GROUNDS. 1,5,6,7 AND 14)

Learned counsel for the Appellant submitted that the case of criminal misappropriation was not proved beyond reasonable doubt against the Appellant before the trial Magistrate Court as the elements of the offence, that is: (i) that there is in existence a property which is capable of being misappropriated or converted by the Appellant; (ii) that the property was misappropriated or converted by the Appellant; and (iii) that the act of misappropriation or conversion was carried out by the Appellant with a dishonest intention to cause wrongful gain to himself or a wrongful loss to another person, were not established by evidence before the trial Magiistrate Court.
He relied on Section 135 (1) & (2) of the Evidence Act 2011, Amala v. The State (2004) 6-7 SC 105, Ani v. The State (2003) 11 NWLR (Pt.830) 142 and Bakare & Ors v. The State (1968) 1 ALL NLR 394.

Counsel in buttressing his position, asserted that in order for the first and second elements of the offence of criminal misappropriation to have been established, it must have been shown beyond reasonable doubt that the Respondents had in their store 626 cartons of Agro-Chemicals worth N6,309,200 during the period in issue and that the said 626 cartons of Agro-Chemicals worth N6,309,200 were indeed misappropriated or converted by the Appellant, which was not proved, as there was no documentary evidence establishing same, thus making the Respondents’ case based on conjectures and assumption which the Court ought not to make a decision based on and which does not shift the burden of proof to the accused, as the standard of proof beyond reasonable doubt had not been met.

He relied on Section 135(3) of the Evidence Act; Ucha v. Elechi (2012) 13 NWLR (Pt.1317) 330 at 339 Ratio 8; Olatunji v. FRN (2003) 3 NWLR (Pt.807) at 406; and Ali & Anor v. The State (1988) 1 SCNJ 17.

On the other hand, learned counsel for the Respondents argued that all the vital and essential elements of the offence of criminal misappropriation as provided for under Section 308 and punishable under Section 309 of the Penal Code was established beyond reasonable doubt at the trial Court via the testimonies of PW1 to PW5.

Counsel submitted that the Appellant failed to effectively challenge the evidence of the Prosecution, which was enough to establish that some cartons of agro chemicals was misappropriated by the Appellant. Thus, the Magistrate at trial was justified in finding as fact that the Appellant committed the offence charged and consequently convicting him for said offence in line with Section 309 of the Penal Code Law Notes, 4th Edition 1987 at page 240, Note 2.

He asserted that Appellant’s argument that the monetary value of the 626 cartons of agro chemicals was not established is an afterthought, as the clear testimony of PW3, the2nd Complainant at trial, clearly fixed the number of missing cartons to be 626 and also established the fact that the Appellant calculated the monetary value of the 626 cartons to be N6,309,200.00.

In the reply brief, learned counsel submitted that the arguments of the Respondents in answer to the Appellant’s position under this issue holds no water and the provisions of Section 309 of the Penal Code Law Notes, 4th Edition 1987 at page 240, Note 2, cannot obviate the need for evidence nor displace the provisions of Sections 131, 132, 135 and 136 of the Evidence Act, 2011. He also pointed out that no matter how strong suspicion that exists in a criminal matter, same does not ground criminal responsibility. He referred to Orji v. State (2008) LPELR-2767(SC) page 26, para. A.

RESOLUTION OF ISSUE TWO
It is correct as stated by Appellant’s counsel that the burden of proving that the Appellant committed the offence of criminal misappropriation of 626 agro chemicals as charged falls on the Prosecution at the Magistrate Court and that the standard to which they must prove the allegation is proof beyond reasonable doubt. This is in line with the settled position of the law which fixes a heavy burden on the Prosecution to clearly establish that the accused committed the offence he is being charged with beyond reasonable doubt. The reason for this stringent requirement of the law is not farfetched as the consequence of a successful criminal trial is punishment by the law and it would be regrettable indeed for an innocent man to be wrongly punished for a crime he did not commit.
Section. 135 of the Evidence Act 2011 provides thus:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
The Supreme Court in the case of ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A) Per GALINJE, J.S.C., reiterated this trite position of the law thus:
“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511 paras A-C, Sola v. The State (2005) 5 (Pt. 1) 135.”
See NNAJIOFOR v. PEOPLE OF LAGOS State (2015) LPELR 24666(CA), TOMETIM v. STATE (2014) LPELR-22788(CA) and ABBEY v. STATE (2017) LPELR-42358(SC).

Upon the close of the Prosecution’s case, the Accused has three options, the first is to make an application that no case has been made out against him, the second is to rest his case on that of the Prosecution and the third is to open his own case, in order to clearly show the Court his own version of events. For any of the aforementioned options to succeed, the Defence must have tried, all through the trial, mainly through cross-examination to controvert the evidence of the Prosecution and cast doubt on the Prosecution’s case. This is so because while the Prosecution indeed bears the burden of proving the alleged crime levied against the accused beyond reasonable doubt, once the burden is discharged, the onus falls on the Defendant to show why the prosecution’s case should not be relied on by the Court.
The above principle of law was aptly captured by the Supreme Court in the case of IGABELE VS. STATE(2006) 6 NWLR Part 975 p. 100 per Onnoghen, J.S.C. at 131, thus:
“The burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Generally speaking therefore, there is no duty on the accused to prove his innocence. However, where circumstances arise, as in this case, some explanation may be required from the accused person as the facts against him are strong. Where he fails to offer such explanations as happened in this case, his failure will support an inference of guilt against him. The facts proved by the prosecution in this case clearly established a prima faciecase requiring the Appellant to explain on oath what happened to the deceased who left home that day alive in his company and with all his body parts complete but was much later found dead and buried in a grave with some of his body parts missing and no fracture or broken bones.”
See ALATISE v. STATE (2012) LPELR-9469(CA) and JIBRIN v. NIGERIAN ARMY (2021) LPELR-55398(CA).

A careful examination of the decision of the lower Court reveals that the learned Justices rightly applied the above stated principles to the matter before them. The judgment of the lower Court was to the effect that after the Prosecution had proven the case charged against the Appellant to the required standard, which is proof beyond reasonable doubt, the Appellant failed to provide any cogent ground for reasonable doubt.

This leaves us with the question as to whether the decision of the Magistrate was justified in the first place and the answer is in the affirmative. Section 308 of the Penal Code which defines the offence of criminal misappropriation provides thus: ‘’Whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation.’’ Section 309, the punishment section provides thus: ‘’Whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years or with fine or with both.’’ The Prosecution before the trial Magistrate Court was able to establish that the Appellant was in charge of Respondents’ movable goods during a period of time, that within that period 626 agro chemicals went missing and that some staff, including PW1, a security guard had seen the Appellant cart away goods without authorization for the Appellant’s own purposes on a previous occasion. The circumstantial evidence pointed to the irresistible conclusion that the Appellant in charge of and with the only means of access to the goods and who had been seen carting away goods, misappropriated the missing 626 agro chemicals.
In EDUN & ANOR v. FRN (2019) LPELR-46947(SC) (Pp 8 – 11 Paras B – C), the Apex Court lent credence to the above restatement of the law thus:
‘’In the two offences, criminal misappropriation defined by Section 308 of the Penal Code and criminal breachof trust defined by Section 311 of the Penal Code, dishonest misappropriation or conversion of property is a common factor. Reed, C J, made it clear in SAMUEL AHMADU SABO v. COMMISSIONER OF POLICE (1973) N.N.L.R. 207, and I agree with him, that in each offence, the accused person, allegedly, dishonestly misappropriates or converts to his own use property in his possession and that he may be convicted for criminal misappropriation if he dishonestly misappropriates or converts to his own use property in his possession even though he came into possession of that property by way of entrustment.”
See FRN v. YAHAYA (2019) LPELR-46379(SC) and HEMBE v. FRN (2014) LPELR-22705(CA). This issue is also resolved against the Appellant.

ISSUE THREE:
WHETHER THE LOWER COURT WAS RIGHT IN LAW TO HAVE AFFIRMED THE SUM OF ₦6,309,200 AWARDED TO THE RESPONDENTS BY THE TRIAL COURT AS COMPENSATION? (GROUND 8)

Learned counsel for the Appellant argued that the trial Magistrate Court was wrong to have awarded and the lower Court was wrong in law to have affirmed the award of the sum of ₦6,309,200 to the Respondents as compensation for the 626 Agro Chemicalsthat were allegedly misappropriated by the Appellant, because the prosecution failed to prove the existence of the alleged 626 cartons or their value in the first place. Counsel asserted that the only attempt made by the Prosecution to prove the existence of the cartons of 626 Agro Chemicals, is the testimony of the PW3, which is inadmissible for hearsay, as the PW3 testified that it was the Appellant who told the PW3 that 626 cartons of Agro Chemicals were missing, an assertion which the Appellant successfully controverted.

On the other hand, learned counsel for the Respondents argued that the lower Court was right to have affirmed the award of compensation in the sum of N6,309,200 by the trial Magistrate in light of the finding by the Magistrate that the Appellant misappropriated 626 cartons of Agro-Chemicals in line with Section 78 of the Penal Code, which provides for compensation either in addition or in substitution for any other punishment upon conviction.

Counsel submitted that PW3’s unchallenged and uncontroverted testimony at trial justified the monetary valued attached to the 626 cartons.

In the reply brief, learned counselreferred to the case of Mustapha v. FRN (2018) LPELR-46565(CA) pages 23-25, para.A, in reiteration of his position that there was no basis for the award of compensation as the Prosecution failed to lead evidence to establish the crime in the first place and did not adduce evidence to warrant the grant of compensation.

RESOLUTION OF ISSUE THREE
The position of the law on award of compensation in criminal cases to Victims of the crime is clear and is principally hinged on the securing of conviction for the offence charged. The Supreme Court in the case of MARTINS v. COP (2012) LPELR-9821(SC) (Pp 17 – 17 Paras A – C), while examining the import of Section 78 of the Penal Code, which makes provision for compensation of victims of crimes convicted for, held thus:
“The Section provides: “S.78: Any person who is convicted of any offence under the 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.” The Section does not affect or alter the jurisdiction of any Magistrate in civil or criminal proceedings. Once the Magistrate convictsthe accused, S.78 of the Penal Code places no limit on the amount of compensation to the victim of the offence charged.”

This Court in the case of KYARI v. STATE (2021) LPELR-54816(CA), recently restated the conditions for the award of compensation to victims of the crime upon conviction thus:
1. The offence for which the accused person was charged is within the jurisdiction of the Court.
2. The accused person has been convicted of the offence charged.
3. There is evidence before the Court which, in the opinion of the Court, shows that the amount of compensation to be awarded is recoverable in a civil suit.

The three conditions stated above are present in this appeal. The trial Court had jurisdiction to try the offence, the Appellant was indeed convicted for the offence of criminal misappropriation of 626 agro chemicals based on the uncontroverted evidence of the Prosecution Witnesses and circumstantial evidence at trial and since the amount awarded as compensation was a summation of the estimated cost of the 626 chemicals, the amount is recoverable in a civil suit and was rightly sustained by the lower Court.

Flowing from the above, this issue is resolved against the Appellant.

ISSUE FOUR:
WHETHER IT WAS CORRECT IN LAW FOR THE LOWER COURT TO AFFIRM THE AWARD OF THE SUM OF ₦6,000 AS FINE AGAINST THE APPELLANT BY THE TRIAL MAGISTRATE EVEN WHEN THE SAID TRIAL MAGISTRATE EXCEEDED HIS JURISDICTION TO AWARD SAME? (GROUND 9)

Learned counsel for the Appellant argued that the lower Court erred in law by affirming the award of the sum of ₦6,000 as fine against the Appellant by the trial Magistrate, as the maximum fine that can be awarded by a Chief Magistrate’s Court is ₦3,000.00, by virtue of Section 15(1)(b) and 2(b) of the Criminal Procedure Code Law of Taraba State, Cap.39., with the implication that the trial Magistrate Court had no jurisdiction to make said award.
He referred to the case of Panalpina World Transport (Nig) Ltd v. Glenyork Nig. Ltd (2009) ALL FWLR (Pt. 455) 1793 at 1796 Ratio 7.

Learned counsel for the Respondents conceded that the fine awarded was in excess of the trial Magistrate’s jurisdiction and urged this Court to set aside the N6,000.00 earlier awarded as fine by the trial Magistrate Court and in its place award N3,000.00.

RESOLUTION OF ISSUE FOUR

Fine is a pecuniary punishment. This can be in addition to imprisonment or independent of imprisonment, depending on the provision of the law. If the amount to be paid by the convict is not stated by the law creating the offence, the amount to be paid would be at the discretion of the Court, subject to that Court’s general financial jurisdiction.
From the facts and records of this appeal, there is no doubt that the Magistrate Court was eminently empowered to award fine by virtue of Section 309 of the Penal Code. The discretion to award fine was however circumscribed by its monetary jurisdiction, which according tothe law on criminal procedure applicable at the time the matter was heard was limited to N3,000.00. The implication of the foregoing is that the Magistrate Court improperly exercised its discretion on the issue of award of fine and same is hereby reviewed downward by this Court to N3,000.00 in line with the Magistrate’s financial jurisdiction.
See AYOTUNDE v. STATE (2021) LPELR-53294(CA), ADEMOYE v. STATE (2013) LPELR-20198(CA)andOGBU v. FRN (2020) LPELR-50273(CA).

In light of the above, this issue is resolved in favour of the Appellant.

In the final analysis, with the germane issues having been resolved against the Appellant, this appeal is found devoid of merit and is consequently dismissed. The judgment of the lower Court sitting in its appellate jurisdiction delivered on 22nd July, 2019 in Appeal No. TRSJ/63CA/2018 is hereby affirmed saved for the order of fine of N6,000 or six months imprisonment which is hereby set aside and substituted with a fine of N3,000 or six months imprisonment pursuant to Section 309 of the Penal Code Law of Taraba State 1997.

CHIDI NWAOMA UWA, J.C.A.: I read beforenow, the draft judgment of my learned brother, JAMILU YAMMAMA TUKUR, JCA. His Lordship has exhaustively resolved the fundamental issues that arose in the appeal and I agree with his reasoning and the decision arrived at in dismissing the appeal for lacking in merit. The appeal is accordingly dismissed.

The judgment of the lower Court sitting in its appellate jurisdiction delivered on the 22nd July, 2019 in Appeal No. TRSJ/63CA/2018 is also affirmed by me, except the fine of N6,000.00 or six months imprisonment which is hereby set aside and substituted with a fine of N3,000.00 is six months imprisonment pursuant to Section of the Penal Code Law of Taraba State 1997.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the opportunity of reading the draft judgment just delivered by my learned brother, JamiluYammama Tukur, JCA. I agree with His Lordship’s resolution of issues canvassed. I abide by the order as to costs.

Appearances:

J. A. Oguche Esq. For Appellant(s)

K. M. Chiroma Esq. For Respondent(s)