Clarke Ejuren Vs Commissioner Of Police (1964)

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BAIRAMIAN, J.S.C.

The appellant was prosecuted before the Chief Magistrate at Sapele on three counts –

(1) that contrary to S.56(1)(a) of the Customary Courts Law, 1957, he tried a dowry dispute;

(2) that contrary to S.346 of the Criminal Code Law, with intent to steal he demanded £50 from Oghenevo Ogiri with threats;2

(3) that contrary to section 331 of that Code he stole £50 property of that person.

The Chief Magistrate convicted him on all counts; he appealed to the High Court, with success on count 1 and on count 2. Ekeruche,J. was of opinion that the trial of count 1 was null and void, and so declared.As to count 2, the learned Judge said this:

“The evidence led in the lower court shows clearly that the £50 mentioned in the case was paid as a result of the beating and maltreatment meted to Oghenevo Ogiri on the instructions of the appellant. That was not demanding money with threats but robbery …. The conviction…. was wrong in law.”

The learned Judge went on to say as follows:

“As regards the third count …. my view is that the offence was clearly proved …. The evidence led in the lower court clearly shows that appellant compelled the payment of the £50 by beating and maltreating Oghenevo Ogiri. Parting with the money in those circumstances cannot be said to be with the consent of the person parting with it…. ..”

The facts which led up to the offence of stealing were as follows. The appellant set up a court in his house at Amukpe, at which he heard a claim made by one Erewa for refund of £50 being dowry which Erewa said he had paid to Ogiri, who had given him a sister in marriage. The appellant heard Erewa and then, without letting Ogiri state his own side of the matter, called on him to refund the £50 on the spot. When Ogiri did not do so, he was beaten on the appellant’s orders by his messengers and locked up in a dreadful room. Ogiri, having been beaten and locked up and fearing what would happen to him if he remained longer in the room, got his people to bring the £50, which he paid to the appellant, who handed it to Erewa. Those facts explain the learned Judge’s views.

The ground of appeal is as follows:

“That the conviction on the 3rd count of stealing is bad in law in that the established facts cannot amount to stealing in law.”

Mr. Irikefe argues that the appellant may be regarded as taking the money for Erewa; and that as Erewa had an honest claim of right against Ogiri, it could not be said that Erewa was guilty of stealing Ogiri’s money; consequently that the appellant, viewed as Erewa’s agent to collect a debt, could not be guilty of stealing either; he might be guilty of assault,but that is another matter.

The argument is academic: it does not deal with the facts of this case, but with a set of hypothetical facts, which must wait for decision when they arise in some other appeal. In this case we have a person who sets up a court of his own and after hearing Erewa’s claim, but without allowing Ogiri to state his defence, orders Ogiri to pay £50 at once and has him beaten to enforce payment. On those facts he was guilty of stealing the money which he forced Ogiri to pay against his will. The appellant cannot be heard to say that he was collecting a debt as the debt collector for Erewa: he was ostensibly holding court to adjudicate on Erewa’s claim. Likewise he cannot plead that he was acting bona fide: he did not allow Ogiri to state his defence to the claim. In fact the appellant did not give evidence, and his learned counsel rested his defence on the evidence for the prosecution, to which headded earlier statements made by some of the witnesses to discredit their truthfulness. That line of defence is open to anyone who chooses to adopt it,especially when counsel thinks that his client will make matters worse if he gives evidence. But in the present case the prosecution established the charge of stealing, and as there is no evidence to suggest that the appellant may not have acted fraudulently, the conviction must stand.

The appellant’s conduct was bad: he would not let Ogiri state his case, and had him beaten up so as to make him pay at once. Such conduct is foreign to the laws of Nigeria, and we hope that the learned Director of Public Prosecutions for the Mid-West will inform the appropriate Minister of this case so that it may be borne in mind if the appellant should aspire to appointment to a customary court. But if there is no other practical purpose to serve, we should like the Director to consider whether it would be worth the trouble and expense of prosecuting the appellant again about holding court in March, 1960.

It remains to add a few words on another ground of appeal which Mr. Irikefe argued. His argument presupposed that a chief magistrate had to have the appellant’s consent for summary trial on counts 2 and 3, which carry three years imprisonment. The learned counsel was asked to read section 21 of the Western Region Magistrates’ Courts Law on a chief magistrate’s summary jurisdiction (which enables him to try summarily offences punishable up to five years or with a fine up to £500); after reading it, the learned counsel gave up the other ground of appeal.

This appeal from the decision of the High Court at Warri on 21st January, 1964, in the criminal appeal No. W/6CA/63 is dismissed and, if the appellant has not served his sentence on count 3, the High Court shall take steps to enforce the judgment.

Other Citation: (1964) LCN/1106(SC)