GABRIEL OGUNDOWOLE (APPELLANT)

v.

COMMISSIONER OF POLICE (RESPONDENT)

(1971) All N.L.R. 34

Division: Federal Supreme Court

Date of Judgment: 29th January, 1971

Case Number: SUIT NO. S.C. 72/1970

Before: Ademola, C.J.N., Lewis, Adoma, JJ.S.C.

Appeal from the High Court (Lagos).

HELD:

(1)     In deciding whether a victim parted with his property by virtue of threats made out to him, the objective test should be applied: could it be said that a reasonable man would voluntarily part with his property in the circumstances of this case but only under a threat? It is difficult to lay down any principle without considering the circumstances. Every case must be decided on its own peculiar facts.

(2)     In this case, it was true Mrs Obebe had been cleared of being in possession of smuggled goods. Had the appellant made the demand on account of the goods, it would have been otherwise. He had the keys of Mrs Obebe's shop in his possession which he refused to give up until his demand was complied with. His senior officer had told Mrs Obebe to go and "settle" with the appellant who persisted in his demand. The demands were clearly accompanied by threats of an injury and financial detriment to Mrs Obebe if they were not complied with. She would not have the keys to open her shop which was guarded by the Police. The injury to her was her reputation that her shop had been closed and guarded by the Police for selling smuggled goods; the financial detriment to her was that she would not make Christmas sales. All these were clearly in evidence before the Chief Magistrate.

(3)     Consequently an offence under s. 406 Criminal Code was clearly established and the appellant was rightly convicted.

Appeal dismissed.

Cases referred to:

Omotosho v. Police (1961) All N.L.R. 693.

R. v. Clear (1968) 52 Cr. APP. R 58.

Edo v. Commissioner of Police (1962) 1 All N.L.R. 92.

Police v. Ededey (1966) N.M.L.R. 383.

APPEAL from the High Court (Lagos).

SUIT NO. S.C. 72/1970.

Chief Williams for the Appellant.

Ejiwunmi (S.S.C.) for the Respondent.

Ademola, C.J.N. (delivering the judgment of the court):-The appellant was tried by the Chief Magistrate, Lagos on a charge containing two counts as follows:-

1st Count: That you Gabriel Ogundowole (M) on or about the 16th day of December, 1968, at Lagos in the Lagos Magisterial District with intent to steal £200 demanded the said sum of £200 from Modupe Obebe with threats of detriment to be caused to the said Modupe Obebe, to wit: that the keys of the shop containing goods belonging to the said Modupe Obebe which were then in your possession would not be released to the said Modupe Obebe if the demand was not complied with and thereby committed an offence punishable under section 406 of the Criminal Code.

2nd Count: That you Gabriel Ogundowole (M) on or about the 16th day of December, 1968, at Lagos in the Lagos Magisterial District, stole a sum of £100 property of Modupe Obebe and thereby committed an offence under section 390 of the Criminal Code.

He was convicted on both counts and sentenced to a term of two years I.H.L. on each count, sentences to run concurrently. His appeal to the High Court was dismissed, and he has now appealed to this Court.

The only ground of appeal, which was argued before us, and indeed, in the High Court is

"that the learned trial Judge erred in law in convicting the appellant when the facts found by him cannot support any of the offences for which the appellant was charged and tried."

The facts of the case briefly are that the appellant, a police officer, on 14th December, 1968, entered the shop of Mrs Obebe (5th witness for prosecution) at Balogun Street, Lagos, as she was selling some lace materials with the door of her shop half closed. He told Mrs Obebe that he suspected that she was selling smuggled goods, the importation of the material she was selling having been prohibited except by special licence. The appellant at first tried to remove the goods to the police station, but eventually agreed to Mrs Obebe locking up her shop. He took the keys from her and took her to the police station where she was locked up. She was eventually allowed bail at the instance of her husband and three days later the receipts for the goods were produced. Meanwhile police guards were already mounted keeping watch at the shop. Having satisfied himself that Mrs Obebe's goods were not smuggled goods the Chief Superintendent of Police, Mr Adefemi (9th prosecution witness) told the appellant to release the keys to Mrs Obebe. The appellant did not however release the keys, and on a subsequent report to the Chief Superintendent of Police, the latter was reported to have told Mrs Obebe to go and "settle" with the appellant. When they both left, the appellant demanded a bribe of £200 from Mrs Obebe before releasing the keys of her shop. After she had pleaded with the appellant he agreed to accept £100 and Mrs Obebe left for the bank. She drew out a sum of £100 and returned to the police station where she handed £100 to the appellant who then gave her the keys.

Arguing the appeal before us, Chief Williams submitted that the element of stealing must be established on both counts and since the owner of the money (Mrs Obebe) consented to give the money to the appellant, it could not be said that this is an offence under section 406 of the Criminal Code. The 2nd count, he argued, depended on the success of the charge under section 406 Criminal Code (1st Count). This section reads:-

"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."

It was submitted that there were no threats made out to the appellant since it was clear that the possession of goods for which she was arrested were lawful and they were not smuggled goods. Under section 406 there must be no true consent to give as in the present case. It was argued that the position must be viewed from an objective test and it could not be said that Mrs Obebe gave the £100 under any threat.

We agree with Counsel that the threat of arrest or prosecution for smuggled goods had been removed before the £100 was given to the appellant and a conviction based on this threat can hardly be supported under section 406 of Criminal Code; but the charge against the appellant was not based on this threat. The charge was for threats that the keys of the shop would not be released. The evidence adduced by the prosecution supported this charge.

In support of his argument Counsel referred us to the case Omotosho v. Police (1961) All N.L.R. 693 which he said was rightly decided and which is in accord with a recent English decision of R. v. Clear (1968) 52 C. App. R. 58. He (Counsel) did not think the two cases Edo v. Commissioner of Police (1962) 1 All N.L.R. 92, and Police v. Ededey (1966) N.M.L.R. 383; and (1964) 1 All N.L.R. 117 were correctly decided. In these two cases, Omotosho (supra) was not referred to. The three Nigerian cases referred to were decided in this Court, and we have no doubt about the correctness of each. In support of Counsel for the appellant we agree that in deciding whether a victim parted with his property by virtue of threats made out to him, the objective test should be applied. Could it be said that a reasonable man would voluntarily part with his property in the circumstances of this case but only under a threat? We have no doubt in our mind that it is difficult to lay down any principle without considering the circumstances. Every case must be decided on its own peculiar facts.

The case Omotosho v. Commissioner of Police (supra) on which Counsel for the appellant relied had its own peculiarity and in our view the facts are not on all fours with the present appeal. The appellant in that case was a police constable. He told one Ogun, a clerk employed in the University College Hospital, Ibadan, that he was investigating into an allegation that he, Ogun had obtained his employment with the Hospital by falsely stating that he had passed Class IV examination. When he and Ogun saw the Hospital Establishment Officer, the appellant was assured that the allegation was false and was shown Ogun's application. The appellant took Ogun to the police station where Ogun made a statement to an Inspector of Police and was granted bail; he was told to return in two days. When Ogun left the police station, the appellant followed him and told him he had been ordered by the Inspector to charge him with obtaining employment by false pretences. He said if a bribe was given Ogun would not be charged. He subsequently took a bribe from Ogun. He was convicted and on a second appeal to this Court, the conviction was quashed on the ground that the threats could not, and did not, in any way operate on the mind of Ogun, and that the offence of demanding with menaces contra to section 406 Criminal Code was not proved; that the appellant was wrongly convicted under that section. It was clear in that case that Ogun was not induced to part with his money through fear or alarm. The money was not given in that case for fear of being taken to the police station as in Edo v. Commissioner of Police (supra).

In the present case, it is true Mrs Obebe had been cleared of being in possession of smuggled goods. Had the appellant made the demand on account of the goods, it would have been otherwise. He had the keys of Mrs Obebe's shop in his possession which he refused to give up until his demand was complied with. His senior officer had told Mrs Obebe to go and "settle" with the appellant who persisted in his demand. The demands were clearly accompanied by threats of an injury and financial detriment to Mrs Obebe if they were not complied with. She would not have the keys to open her shop which was guarded by the police. The injury to her was her reputation that her shop had been closed and guarded by the police for selling smuggled goods; the financial detriment to her was that she would not make Christmas sales. All these were clearly in evidence before the learned Chief Magistrate.