John Edo & Anor V. Commissioner Of Police (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J

The appellants were convicted on 14th April, 1959, on three charges, by S.A. Abina, Esq., Senior Magistrate at Warri; their appeal was dismissed by Kester, J., and they have appealed further.

The charges were (1) under s. 365 of the Criminal Code, of depriving one Tebegbene of his personal liberty; (2) under s. 406, of demanding £10 with threats and with intent to steal, the threat alleged being that he would be taken to the Police Station and imprisoned; and (3) under s. 390, of stealing £5 of his.

The facts found by the learned Senior Magistrate were these: someone complained that his wife had been abducted, and the appellants, who were police constables were detailed to investigate. He told them that Tebegbene, the complainant in the present case, was the only person who could direct them to where the abductor was to be found, and took them to the complainant’s camp. On arriving, they told him that he was under arrest on account of that woman, and when he tried to escape, they seized and tied him; and although it was near midnight, and in spite of his telling them the place where the man they wanted was to be found, they forced him into their canoe and compelled him to go with them to that place; and even after finding that man, they would not release the complainant, but demanded £10 from him for his release, or else they would take him to Burutu and have him locked up in the cell of the Police Station. It was not until he paid £5 that he was released.

For the appellants it has been argued that the evidence did not establish any one of the three offences.

In regard to the deprivation of liberty, the argument is that their action was not unlawful. Reference was made to sections 10 and 34 of the Criminal Procedure Act, and to section 20 of the Police Act, on powers of arrest, but we cannot see any provision which made their conduct lawful; and their conduct was aggravated by their continuing to deprive the complainant of his liberty even after the man they wanted was found, and by their extorting money for his release. The learned Senior Magistrate said this on the extortion:-

As regards count 2, threat of detriment offered to the 1st prosecution witness which induced him to meet the demand, was that he would be taken to Police Station, Burutu, and there be locked up or imprisoned. I consider that as sufficient demand with threat of detriment within the meaning of section 406 Criminal Code.

It must be borne in mind that the 1st prosecution witness had been deprived of his personal liberty for more than 2 days when this demand with threat was made.

As regards count 3 there is no doubt that when the accused persons took the five pounds from the 1st prosecution witness that they intended to deprive him of them permanently, and therefore were guilty of stealing in section 383(2)(a) Criminal Code. It must be remembered that they were not entitled to the money and it cannot be said in the circumstances of this case that the 1st prosecution witness gave it of his own volition. For my conclusions on counts 2 and 3 I rely on the authority of Wada and another v. L G. of Police, (1957) N.R.N.LR., part 1, page 1.

That was a case heard in the High Court of the Northern Region on appeal from a Magistrate. Wada, a policeman, with the help of his co-accused, demanded money from the complainant, threatening him that his house would be searched and that he would be taken to the Police Station, and the complainant paid them £10 to avoid the detriment. The point pressed in the Wada appeal was that there was no intent to steal, on the ground that the taking of the money was not without the consent of the complainant.

Section 406 of our Code provides that:-

Any person who, with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or by any other person, if the demand is not complied with, is guilty of a felony, and is liable to Imprisonment for three years.

The corresponding section in England is section 30 of the Larceny Act, 1916, which provides that:-

Every person who with menaces or by force demands of any person anything capable of being stolen with Intent to steal the same shall be guilty of felony and on conviction thereof liable to imprisonment for any term not exceeding five years.

In view of the date of our Code-1916-it is more likely that the draftsman of our s. 406 had as his model section 45 of 24 and 25 Vict. c.96, which provided that:-

“Whosoever shall, with menaces or by force, demand any property, chattel, money, valuable security, or other valuable thing of any person with Intent to steal the same shall be guilty of felony,” etc.

The word “menaces” was interpreted by the Court of Crown Cases Reserved in R. v. Tomlinson, (1895), 1 Q.B., 706, which seems responsible for the wording of our section. In England the draftsman of the Larceny Act kept the former wording, probably on the principle that it is prudent to continue having a wording which has been interpreted.

Our section, like the English one, requires an intent to steal; and that requirement imports a test, which Is stated in R. v. Bernhard, 26 Cr. App. R., 137, at p. 145 in these words:-

“The test is whether, if the money had been obtained, it would have been in such circumstances that it could properly be said to have been stolen: see Walton, (1863), 9 Cox 268.”

That test must, of course, in Nigeria be applied in the light of its own law of stealing.

There is no need here to go into any elaborate comparison of our law of stealing with that of England: for the understanding of the passage quoted from the judgment of the learned Senior Magistrate’s, it will be sufficient to quote, from p.4 of the Wada report, the following:-

“Although our section 383 on stealing does not mention the consent of the owner, I think that Its absence is implied; for a court would not, I venture to say, convict A of stealing a pound from B if he took it with the consent of B that it should become the property of A; for in such a case it would cease to be the property of B, who could no longer be regarded as the owner of the pound, and therefore A could not be said to ‘deprive the owner’ of it. The consent must, however, be a true consent, that Is to say a consent that is voluntary, free from any menace ‘of such a nature as to unsettle the mind of the person upon whom it operates, and to take away from his acts that element of voluntary action which constitutes consent’, as it is put in Archbold (1949) at page 672 on the authority of R. v. Walton, 9 Cox 268; L. and C. 288.”

(See now Archbold, 1959, para. 1891).

The views of the High Court in Wada’s case are not binding on us, but there is no need or occasion in the present case to say either that they go too far or that they do not go far enough: for neither side has argued about them. Until it is made to appear that they do either, they may safely be acted upon. What learned Counsel for the appellants has done is to ask us to apply the reasoning in the case of Knewland, 168 Eng. R. 461; but the charge there was robbery, and that case is not relevant here any more than it was in case of Robertson, 169 Eng. R. 1482, where it was also cited.

In the case of Robertson the court said, at p. 1484:-

“If a policeman states that he means to act upon an authority which he professes to have, and to lock a man up, that is a menace…. A threat to imprison a man upon a fictitious charge is a menace within the plain meaning of the statute.”

(The statute meant was 24 and 25 Vict. c.96, section 45). It is equally a threat within the meaning of our section 406.

There is no substance in the appeal, and it is therefore dismissed.

Other Citation: (1962) LCN/0949(SC)