A Court in a criminal trial should not arbitrarily award compensation to any victim of an offence when there is no sufficient evidence established to such amount of compensation.
A Court must be certain as to the exact amount owed for which compensation should be paid. Award of compensation and restitution should not be by the whims and caprices of a trial Judge.
SULEIMAN vs. FEDERAL REPUBLIC OF NIGERIA(2018) LPELR-46710(CA)
ISSUE: ORDER OF COMPENSATION-Conditions for the award of compensation in a criminal matter
PRINCIPLE:
"The lower Court, subsequent to the delivery of its judgment on 9/2/17, in a Ruling delivered on 28/2/17 at the instance of the prosecution, pursuant to the provisions of Section 319 of the Administration of Criminal Justice Act, 2015 (ACJA) and Section 78 of the Penal Code, ordered the convicts to pay the sum of N241,000,000 (Two Hundred and Forty-One Million Naira) to the nominal complainants as "restitution/compensation".
The Court, in so ordering, held as follows: "the evidence led in this case and based on which the convicts were convicted clearly establish that the nominal complainants supplied rice within the month of August 2013 to the convicts for which they issued cheques in various amounts as payments for the consignments.
The evidence also shows that 27 of these cheques in the sum of N261,000,000.00 (Two Hundred and Sixty One Million Naira) only were returned unpaid. The total sum of these 21 cheques is 261 million. Learned Counsel for the convicts successfully established that the convicts on 28/08/13 made two payments to the nominal complainants in the sum of N10 Million each.
This is proved by the entries in Exhibit 35, the Stanbic IBTC Statement of Account of the 3rd convict against the said date. I think this is the amount admitted by the PW3 during cross examination.
Apart from this there is no evidence to establish the claims of the convicts in their extra judicial statements and oral evidence to the effect that they made both cash payments and bank transfers to the nominal complainants.
It is not enough, having regard to the evidence established by the cheques exhibits 1 - 16 and 21 - 31, to simply assert that they paid various sums of money. Witnesses or documents that proved the transaction or in the case of transfer, bank tellers, are essential to establish such payments.
None has been produced by the convicts. I therefore, after deducting the sum of N20,000,000.00 from the total sum of N261 Million, find that the prosecution has established by sufficient evidence, on preponderance of evidence, that the nominal complainants are entitled to restitution in the sum of N241,000,000.00 (Two Hundred and Forty One Million Naira) only.
I so hold." The statutes relied upon by the lower Court and which allow for payment of compensation, are the following: Section 319 of the Administration of Criminal Justice Act, 2015 which provides as follows: 319(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) in compensating a bona fide purchaser for value without notice of the defect of the title in any property in respect of which the offence was committed and has been compelled to give it up; and
(c) in defraying expenses incurred on medical treatment of a victim injured by the convict in connection with the offence. (1) of this section is imposed in a case which is subject to appeal, no payment additional to the fine shall be made-before the period allowed for presenting the appeal has elapsed or, where an appeal is presented, before the decision on the appeal.
(2) Where the fine referred to in subsection
(3) Order for cost or compensation may be made under this section irrespective of the fact that no fine has been imposed on the defendant in the judgment.
Section 78 of the Penal Code, provides as follows:
Any person who is convicted of an 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 to or in substitution for any other punishment."
(a) The offence for which the accused was charged is within the jurisdiction of the Court.
(b) The accused must have been convicted of the said offence.
(c) There must be evidence before the Court which evidence must be such that, in the opinion of the Court, would be capable of making the amount of compensation to be awarded recoverable by Civil Suit.
The Court stated at page 460 paragraph B that the provisions of Section 78 of Penal Code and 365 (1) of the CPC: Section 365 of the Criminal Procedure Code of Northern Nigeria, also relied upon by the lower Court, provides as follows: 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 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 of any person injured by the accused in connection with the offence. In the instant case, the Appellant, under cross examination, stated at Page 484 of the Record:
"Because the nominal complainant had took (sic) away goods from our store I cannot say that we are still indebted to them. I was not around when that was done. Someone told me. The staff of the nominal complainant told me. I don't know the value of the goods taken away.
There thus appears to be some contention with regard to the actual amount owing. Learned Counsel to the Appellant has referred me to the statement made to the Respondent, contained at Page 35 of the Record and which, I note, was tendered by the Respondent, as Exhibit 45C.
It has been held severally that a Court can make reference to the case file before it and make use of any document and relevant evidence.
See Famudoh v. Aboro (1991) 9 NWLR Part 214 Page 210 at 229, Para. E, per Tobi, JCA, (as he then was); Onagoruwa v. Adeniji (1993) 5 NWLR Part 293 Page 317 at 331, Paras. G-H, by the same learned Jurist. This is moreso, when the actual statement was tendered in the Court by the prosecution.
The statement referred to by the Appellant is of one "Tithesh Konato" at Page 35 of the Record, who I note is PW1. He is stated to be an Indian and a Business Development Manager.The statement is as follows:
"In addition to my earlier statement dated 18/9/2013 I wish to further state that a total of 1234 bags of 50 kg and 279 bags of 25 kg rice valued at N12,970,900 (Twelve Million, Nine Hundred and Seventy Thousand, Nine Hundred Naira) was retrieved from Alh. Musa Suleiman's warehouse. The earlier total outstanding of N290,000,000 was reduced to N277,029,100 when the above value of goods retrieved was deducted." While there is no dispute with regard to the power of the Court to order compensation/restitution, in awarding compensation under the statutes above, the Courts must however be certain as to the exact amount owing, for which compensation should be paid.
It was held in the case of Martins v. COP (2013) 4 NWLR Part 1343 Page 25 at 43 Para. C., per Muntaka-Coomassie, JSC, that the provisions of Section 78 of the Penal Code and 365(1) of the CPC, which I hold applies similarly to Section 319 of the ACJA:
"do not give room to any criminal Court to arbitrarily award compensation to any victim of an offence, when there is no sufficient evidence to such amount of compensation." In the instant case, no mention was made by the lower Court in its judgment of the evidence of the Appellant with regard to the goods allegedly retrieved from the Appellant's shop in part amortization of the money owed.
Certainly, if the value of these goods is subtracted from the amount allegedly owing, the amount outstanding would be undoubtedly lower than the sum said to be owing.
It was therefore unsafe, I hold, for the lower Court, in the absence of proof of the exact amount outstanding, to suo motu take upon itself the task of reconciling these figures.
I thus do agree with the Respondent that the evidence led and circumstance of this case did not justify the award of the sum of N241,000,000.00 made by the lower Court in favour of the nominal complainant as compensation/restitution." Per ADEFOPE-OKOJIE, JCA.(Pp.23-30,Paras.D-F).
 - ISSUE: ORDER OF COMPENSATION-Conditions for the Award of Compensation In a Criminal Matter.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI){kind=link}
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