Clark Ejuren Vs Commissioner Of Police (1961) LLJR-SC

Clark Ejuren Vs Commissioner Of Police (1961)

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HURLEY, C.J., N.R.

The appellant was tried in the Magistrate’s Court, Sapele, of stealing £5, the property of Eruana Onator and also of another offence. On appeal to the High Court, he was acquitted of the second offence, but the conviction for stealing was affirmed. He now appeals to this Court.

In his judgment, the learned trial magistrate said:-

In support of the charge, Prosecution called ten witnesses and their evidence may be summarised as follows:- That the accused was the president of a ’court’ known as “Umukoko Court” and that the Court was constituted by the president and eleven members. That on the 21st day of February, 1960, 3rd prosecution witness was summoned to the court holden at Amukpe. That at that sitting of the court, the accused acted as the president of the said court and in that capacity adjudicated in a suit brought by Michael Owhojero – 3rd defence witness against 3rd prosecution witness. The action was for the recovery of a sum of £200 being bride price paid by the plaintiff on defendant’s sister – Eruana Onator – 4th prosecution witness. At the hearing of the said suit, 3rd prosecution witness refused to submit to the jurisdiction of the Umukoko Court and maintained that any claim against him by the plaintiff should be made in the Jesse Grade “C” Customary Court. Accused assured 3rd prosecution witness that no court was greater than his court. Notwithstanding, 3rd prosecution witness was unyielding to the jurisdiction of the court.

Thereupon, accused conceded that if 3rd prosecution witness, insisted on the case against him being heard in the Jesse Customary Court, he (3rd prosecution witness), there and then, should pay £15 being summons fees paid to the court by the plaintiff. 3rd prosecution witness again declined to comply with the request. Thereupon, accused ordered six men to hurl 3rd prosecution witness into a bowl filled with starch water. In the process, 3rd prosecution witness was brutally handled, so much so that his sister-4th prosecution witness knelt before accused and sought for mercy on her brother. She offered to pay £5 in part payment of the £15, if only her brother could be released. Having received the £5 from 4th prosecution witness, accused ordered that 3rd prosecution witness be released and gave him a period of two weeks within which to pay the balance of £10. Before the expiration of the time so given, accused demanded the balance of £10, from 3rd prosecution witness, but the latter declined to comply. As a result of threat and of fear of what might follow 3rd prosecution witness’s refusal to comply with the demand of the accused, 4th prosecution witness sent petitions to the Police and to the Jesse Customary Court.

After considering the evidence on both sides, the magistrate said that he believed the prosecution witnesses and disbelieved the defence witnesses, and, without making any specific findings of fact, concluded his judgment by saying “I have not the slightest doubt in my mind that accused did commit the offences charged. Accordingly, I find as a fact that accused is guilty as charged on the two counts”.

The judgment of the High Court on this part of the Case was as follows:-

There was evidence before the learned trial Magistrate which he believed, that when the 3rd prosecution witness refused to submit to the jurisdiction of Umukoko Court and to pay £15 summons fee to the 3rd defence witness, he was ordered by the appellant to be made to sit in a bowl of starch water until he would pay the money. The 3rd prosecution witness’s sister, the 4th prosecution witness who was the subject of the action in the court and who was present, was afraid and she offered to pay the money in order to obtain the release of her brother. She paid £5 that day and the money was received by appellant. She was forced to pay the money for fear of the harm her brother might come to if the money was not paid and this vitiates consent on her part. She did not part with the money voluntarily and in the circumstances the appellant stole it.

The trial magistrate did not make any specific finding that the 4th prosecution witness did not part with the money voluntarily. Her evidence was that when she saw how her brother was being handled, she came forward and knelt before the accused and offered to pay £5 and asked if he would release her brother if she paid it, and the accused agreed and demanded the £5 and she paid it to him. The evidence of two other witnesses, the 2nd and 3rd prosecution witnesses, also showed that the offer of £5 came from the 4th prosecution witness. The 5th prosecution witness said that when the 4th prosecution witness knelt down and begged the accused he asked her how much money she had with her and when she replied that she had £5 he asked her to produce it, which she then did. But in summarizing the evidence in the passage in his judgment which we have quoted, the magistrate followed the evidence of the 2nd, 3rd and 4th prosecution witnesses and not that of the 5th prosecution witness.

The trial magistrate did not find as a fact that the 4th prosecution witness was forced to pay the money, and on the evidence as his summary shows he saw it he must have found, if he had made a specific finding, that the 4th prosecution witness offered the money. And this court, as an appeal court, cannot choose between the two versions of what took place in order to make a finding of fact against the appellant which the trial court did not make. In the absence of a specific finding by the trial magistrate, the only conclusion that can be drawn from the evidence as the magistrate saw it is that the 4th prosecution witness was a volunteer. Thus it has not been established that the appellant took the £5 from her without her consent, and an essential ingredient of the offence of stealing has not been proved against the appellant. It was argued that the offence would not have been stealing even if the money had been paid in consequence of a demand made by the appellant, but it is unnecessary for us to express an opinion on that question. The appeal is allowed.

Appeal allowed; Conviction quashed

Other Citation: (1961) LCN/0898(SC)