CORAM

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PARTIES

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APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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APPEAL, CRIMINAL LAW AND PROCEDURE, INTERPRETATION OF STATUTE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE.

 

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SUMMARY OF FACTS

 

The Appellant herein, was charged with the offence of criminal intimidation contrary to Section 396 and punishable under Section 397(b) of the Penal Code Laws of Borno State of Nigeria. Upon a Petition filed by one Goni Ali, that the Appellant trespassed into his premises and threatened him with a Pump Action Gun, insisting that the petitioner should cover up the trench that he had dug on his land with the intention of constructing a wall to prevent water from flowing back into his premises. At the close of trial, the Appellant was convicted as charged and sentenced to pay a fine of N50, 000.00 or to serve a term of two (2) years imprisonment. He was also ordered to pay to the complainant the sum of N100, 000.00 to defray his expenses pursuant to Section 365 of the Criminal Procedure Code and in default, to go to prison for an additional one (1) year imprisonment. Dissatisfied with the decision of the Court, the Appellant filed an appeal to the Court of Appeal.

 

 

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HELD

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Appeal Succeeds in Part

 

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ISSUES

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 Whether the sum of N100, 000.00 compensation was not arbitrarily awarded against the Appellant by the trial Court, having regard to the circumstances of the case.

 

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RATIONES DECIDENDI

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APPEAL- NATURE OF AN APPEAL

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“It must be said from the onset that in essence, the nature of an appeal constitutes an invitation to a higher Court or appellate Court to review the decision of a lower Court in order to find out whether, on a proper consideration of the facts placed before the lower Court and the applicable law, the lower Court arrived at a correct decision. Thus, an appeal does not constitute a new action, but a re-hearing of the same action that had been commenced and adjudicated upon by the trial Court, the record of which proceedings, as compiled and transmitted to an appellate Court, binds both the Court and the parties – Festus V AAC (2020) 4 NWLR (Pt. 1714) 276, 298, F (CA); Ezenwaka V Okon (2017) 1 NWLR (Pt. 1547) 386, 406-407 (CA); Egbe V Alhaji (1990) 1 NWLR (Pt. 128) 546; Oredoyin V Arowolo (1989) 4 NWLR (Pt. 114) 172.” PER J.H. SANKEY, J.C.A

 

 

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CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

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OFFENCE OF CRIMINAL INTIMIDATION- INGREDIENTS OF THE OFFENCE OF CRIMINAL INTIMIDATION A PROSECUTION MUST PROVE

“In order to prove the offence of criminal intimidation contrary to Section 396 and punishable under Section 397 of the Penal Code Law, the prosecution must prove the following ingredients –

1) that the accused threatened the complainant or some other persons;

2) that the threat was of some injury to him;

3) that it was given to cause alarm to him or it was given for him not to do or omit to do anything which he is legally allowed to do or not bound to do.

To sustain a conviction for this offence therefore, it suffices if the accused person makes a threat by which the victim is thrown into fear of any harm to himself or to any other person. In the case of Chiedozie V COP (2018) LPELR-43602(SC) 1, 12-13 per Peter-Odili, JSC, the Supreme Court in making its findings in a similar case where the Appellant was convicted of the offence of criminal intimidation, held inter alia as follows:

“…It is enough if the prosecution is able to establish that the accused and in this case the appellant made a threat by which the victim is thrown into fear of a harm to himself or any other person of an instant harm. What the prosecution needs to prove are:

a. That the accused threatened the complainant or some other persons.

b. That the threat was of some injuries to him.

c. That it was given to cause alarm to him or to cause him not to do or omit to do any act which he is legally entitled to or not bound to do.” PER J.H. SANKEY, J.C.A

 

 

INTERPRETATION OF STATUTE

PRINCIPLE OF CONSTRUCTION OF STATUTE – MODE OF CONSTRUING “OR” AS USED IN SECTION 396 OF THE PENAL CODE

“For ease of reference, the third ingredient of the offence of criminal intimidation is again set out here-under:

That it (the threat) was given to cause alarm to him or it was given for him not to do or omit to do anything, which he is legally allowed to do or not bound to do.

Clearly, as set out in Section 396 of the Penal Code, the definition section of the offence of criminal intimidation, the word “OR” is repeatedly used. By the principles of the construction of a statute, if the words of a statute are clear and unambiguous, the plain and ordinary meaning of the words must prevail in giving effect to the intention of the lawmaker. In other words, a Court must give clear and unambiguous words in statutes their natural, literal and ordinary meanings. In the instant case, the words in Sections 396 and 397 of the Penal Code are clear and unambiguous and thus ought to be given their ordinary meaning. Hence, the word “or” is used in the provisions disjunctively. Consequently, it is not required that all scenarios given in the provision in the alternative should be established before the offence is considered proved. The Supreme Court made this clear in the case of Chiedozie V COP (supra).” PER J.H. SANKEY, J.C.A

 

CRIMINAL LAW AND PROCEDURE

CONFESSIONAL STATEMENT- TEST FOR THE ADMISSIBILITY OF CONFESSIONAL STATEMENT

“Not speaking a language fluently does not equate to not speaking and/or understanding the language sufficient to communicate in it. Consequently, from a totality of the evidence placed before the lower Court, the learned trial Judge acted rightly when he acted on the confessional statement, despite its retraction, having found that the confessional statement met the six tests to be applied before a Court can rely on a retracted confessional statement. The six tests are –

1. Is there anything outside the confession that makes it probable that the confession is true?

2. Has the evidence been corroborated?

3. Are the statements true as far as they can be tested?

4. Did the accused person have the opportunity of committing the offence?

5. Is the confession possible?

6. Is the confession consistent with other ascertained facts?” PER J.H. SANKEY, J.C.A

 

CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE

AWARD OF COMPENSATION – WHETHER COMPENSATION CAN BE AWARDED TO VICTIM OF A CRIME

“It is indeed correct that by Section 78 of the Penal Code Law (supra) and Section 378(1) (b) of the Criminal Procedure Code (supra), a Magistrate Court or a High Court has jurisdiction to award compensation to be paid to the victim of a crime by a person who has been convicted of the crime. For ease of reference, Section 78 of the Penal Code provides:

“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.”

Section 365(1) (b) of the Criminal Procedure Code also provides:

“365. Whenever under any law in force for the time being a criminal court imposes a fine, the court may when passing judgment order that in addition to fine, a convicted person shall pay a sum in compensation in whole or in part for the injury caused by the offence committed where substantial compensation is in the opinion of the court recoverable by civil suit.”

Thus, by the above provisions in the respective laws, the award of compensation against a convict to be paid to a person injured by the convict’s offence may be either in addition to or in substitution of any other punishment. This power of the trial Court to make an award of compensation is discretionary, and no limit is set on the amount that may be awarded.” PER J.H. SANKEY, J.C.A

 

CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE

AWARD OF COMPENSATION – CONDITIONS TO BE MET FOR A COURT TO AWARD COMPENSATION TO VICTIM OF A CRIME

“In the case of Martins V COP (2013) 4 NWLR (Pt. 1343)25, 42-43 per Muntaka-Coomassie, JSC, the Supreme Court held that for a criminal Court to validly exercise the powers conferred by Section 78 of the Penal Code and Section 378 of the Criminal Procedure Code, the following must be shown:

a) The offence for which the accused person was charged is within the jurisdiction of the Court. In other words, the Court must have the power to convict the accused person of the criminal offence charged; and

b) The accused person has been convicted of the offence charged; and

c) 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.

Thus, the Court does not have power to arbitrarily award compensation to any victim of an offence where there is no sufficient evidence on the Record of an entitlement to such amount recoverable in a civil suit. Consequently, while the law is certain that a Court may exercise its discretion under the law to award compensation, in addition to the term of imprisonment or fine, the victim’s entitlement to same must be evident from the evidence adduced before the trial Court, and the other side should be heard on the issue. See Mustapha V FRN (2020) 14 NWLR (Pt. 1743) 26, 45 per Sankey, JCA.” PER J.H SANKEY, J.C.A

 

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

CONFESSIONAL STATEMENT- WHETHER A RETRACTED CONFESSIONAL STATEMENT IS INADMISSIBLE

“The law is that a retracted confessional statement does not make such statement inadmissible once the 6 tests of admissibility are observed see Shazali v. State (1988) LPELR-3040(SC) and Ogudo V. State(2011) LPELR-860(SC).” PER. E. TOBI, J.C.A

 

LAW OF EVIDENCE

DIRECT EVIDENCE- STATUS OF DIRECT EVIDENCE

“It is settled law that the best form of evidence is direct evidence see the case of Akinlolu V. State (2015) LPELR-25986(SC), Aiguoreghian & Anor v. State(2004) LPELR-270(SC) and Akinmoju v. State (2000) LPELR-351(SC).” PER E. TOBI, J.C.A

 

LAW OF EVIDENCE, CRIMINAL LAW AND PROCEDURE

DIRECT EVIDENCE – WHETHER DIRECT EVIDENCE OF A RELATIVE CAN BE CLASSIFIED AS GIVEN BY A TAINTED WITNESS

“Once a person’s relatives gives direct evidence, it does not make them to become tainted witnesses if the trial court can look at other things to corroborate their evidence, as there is no law that prohibits the relatives of a victim from testifying in court, see Wowem v. State(2021) LPELR-53384(SC)…” PER E. TOBI, J.C.A

 

INTERPRETATION OF STATUTES

LITERAL RULE OF INTERPRETATION – INTERPRETATION OF CLEAR AND UNAMBIGUOUS WORDS IN A STATUTE

“Also, as a general rule in the interpretation of statutes, if the words of a statute are clear and unambiguous, the plain and ordinary meaning of the words must prevailing giving effect to the intention of the lawmaker.  See the cases of Gana v. SDP & Ors(2019) LPELR-47153(SC) and Amokeodo v. IGP & ORS(1999) LPELR-468(SC).” PER. E. TOBI, J.C.A

 

 

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CASES CITED

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STATUTES REFERRED TO

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Criminal Procedure Code

Penal Code Law, Cap 102 Laws of Borno State.

 

 

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