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.