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MATHEW BABALOLA AND ANOR
BEFORE THEIR LORDSHIPS:
CRIMINAL LAW – Evidence—Deposition-Trial judge relying on evidence of witness-No evidence that accused had kept witness out of the way-Whether proper for judge to admit deposition under s. 34(1) of the Evidence Law.
CRIMINAL LAW – Robbery-”Threatens to use actual violence to any per-son”-Meaning-Criminal Codes s. 401.
Alakiia (with him, Chief Williams) for the appellants.
Ekong (Ag. S.S.C.) for the respondent.
LEWIS, J.S.C.:(delivering the judgement of the Court)-On the 11th of July, 1969 Bassey, J. in the High Court Calabar convicted the two accused persons in Charge No. C/5C/69 of robbery contrary to section 402 of the Criminal Code and sentenced each of them to 10 years imprisonment with hard labour.
The case for the prosecution put briefly was that the two accused persons were policemen and the second accused called out of a queue Sunday Babalola (1st P.W.) and Shedrack Owolabi (2nd PW) on the 6th of September, 1968 when they were waiting to deposit money which they had in a brief case (exhibit 1) at Barclays Bank, Calabar. He then produced his identity card and said he was a policeman from the C.I.D. and required them to come and see his “Oga” meaning “Boss”. They agreed and on the way they met the 1st accused who asked what was happening and on being told he asked if they had money and when they said they had he asked how much but the 1st P.W. refused to tell him. The 1st accused then talked with the second accused and after doing so told the 1st P.W. and the 2nd P.W. that the second accused suspected them and that he was taking them to his boss. The two accused persons then took the 1st and 2nd P.W.s to a house and after entering it the 1st accused said to them he wondered whether they valued their lives more than money and the second accused then took a gun out of his pocket and ordered the 1st P.W. to hand over the money. The 1st P.W. then gave up the brief case and the 1st accused took out of it the sum of £875 which was in it and handed back the brief case together with pass-books to the 1st P.W. The accused persons then told the 1st and 2nd PWs not to tell anybody of what had happened and let them go. The learned trial judge accepted the evidence of the 1st and 2nd PWs of what happened and did not believe the story of the two accused persons that after challenging the 1st and 2nd PWs. they took them off to the house for drinks and never forced them to give up their money at gun point. He also believed the evidence of a girl at the house, which belonged to her father, whose deposition was put in, to the effect that she saw the 1st and 2nd PWs at the house with the two accused persons and that there were currency notes on the floor of the room before she went out of it.
Chief Williams for the appellants argued that the learned trial judge was wrong to rely on the girl’s evidence as it was inadmissible, the requirements of section 34(1) of the Evidence Law which reads-
“34. (1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable: Provided-
(a) That the proceeding was between the same parties or their representatives in interest;
(b) That the adverse party in the fast proceeding had the right and opportunity to cross-examine; and
(c) that the questions in issue were substantially the same in the fast as in the second proceeding.”,
not having been complied with. It was the submission of learned counsel that it was not shown that the accused had kept her out of the way nor had it been shown that her presence could not be obtained without unreasonable delay or expense. Similar objection was taken by Mr. Okon for the accused persons at the trial but the learned trial judge rightly in our view overruled it saying, after setting out the provisions of section 34-
“From the evidence given by the recalled 4 P.W. Inspector Nsemo, it appears to me that the provisions of section 34(1) of Cap. 49 have been fully met and I accept that evidence. I therefore rule that prosecution can tender the depositions of Margaret Ekong.”
The material evidence of the 4th R W., to whom the learned trial judge referred, is as follows
“I knew Margaret Ekong who gave evidence at the PI. During my investigation she was living at No. 2 Edem Efio Ekoho Street, Calabar. At the time of the PI. she was still living at that address. It is to my knowledge that she was served with a subpoena to appear in the High Court to give evidence in this case. She was not in court at the last adjournment. As a result of her absence yesterday the court issued a bench warrant for her arrest and I was ordered to see that she appeared in court this morning. At about 5 p.m. yesterday I went to No. 2 Edem Efio Ekoho Street to look for her but she was not found. Enquiry revealed that Margaret Ekong had been living with a soldier. I was given a military policeman who helped me to look for her at a certain police barracks. But it was discovered that the soldier, one Alabi, had taken Margaret Ekong to Lagos.”,
and from this we are satisfied that the learned trial judge was entitled to rule as he did as, though no case of keeping the girl out of the way by the accused persons had been established, to search for the girl who had gone to Lagos with a soldier might well have caused unreasonable delay. We do not therefore think that the learned trial judge was required to grant an adjournment to cause the girl to be looked for as was submitted, but proper-ly admitted her deposition under section 34(1).
Chief Williams also argue a ground of appeal which read-
“2. The learned trial judge erred in law in convicting this appellant when it was not proved, as alleged, that the accused persons used personal violence on Sunday Babalola and Shedrack Owolabi.”
Section 401 of the Criminal Code reads-
“401. Any person who steals anything, and at or immediately before or immediately after the crime of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is said to be guilty of robbery.”,
and it was his submission that the words “threatens to use actual violence to any person” meant that it was for the prosecution to establish that the accused could use actual violence and that as no evidence was adduced that the gun was loaded they had failed to prove an essential ingredient of robbery, so that whilst the accused persons might have been guilty of stealing they could not be convicted of robbery. He submitted that the act of the accused persons must be looked at objectively and not subjectively through the eyes of a threatened person. Mr. Ekong for the respondent for his part submitted that the circumstances of having a gun pointed at the 1st PW was enough to put him in fear and that when he handed over the money as a result he was doing so by virtue of a threat of actual violence.
In our view Chief Williams is right that the matter must be looked at objectively, but that is to say the test must be whether looking at the circumstances a reasonable man would have been put in fear of actual violence by the threat he received. If a person threatens another with a gun we think the natural inference is that the threatened person would expect to receive actual violence if he did not accede to the order to hand over his money. He could not be expected to ask the person threatening him to show him whether the gun was loaded or not so as to determine whether he was put in fear of actual violence. If the position were, as Chief Williams submitted, that the prosecution must prove the gun was loaded then the effect would be that one would have to determine in each case whether the person threatening was actually capable of carrying out the threat that he was making, but that is not in our view the test, which must be whether the threatened person reasonably believes in the apparent circumstances that the threat is likely to be carried out and being so put in fear hands over his money (or other goods demanded). Originally in England actual violence was necessary for robbery but this changed and any threat of violence, as a result of which goods were taken, is now enough to amount to robbery, as is shown by Lord Moms of Borth-y-Gest in Reg. v. Hall Reg. v. Desmond  A.C. 960 where at 979 he said-
“There is little doubt that the writings and the decisions in regard to robbery reveal a continuous and progressive process of definition. In earlier times the offence was probably limited to cases where there was actual violence to the person and a forcible taking from the person. Gradually the conceptions as to what constituted robbery were extend-ed. Actual violence was not necessary. There might be a putting in fear of violence as by a threat of violence. That could be called constructive violence.”
We do not think that the use of the word “actual” enhances the meaning of the word it qualifies as a thing is either done or not done so that at the most to say a thing is “actually done” is to emphasise that it was done, or in other words the use of the word “actual” may emphasise the word following it. Compare Cladstone v. Padwick (1871) L.R. 6 Ex. 203 where Bramwell B. at page 211 said-
“the main question then arises, which is, whether there was here an, actual seizure’ before the execution of the bill of sale. To construe the statute, we must consider the inconvenience it was intended to remedy, which was the hardship caused by the existing law to bona fide buyers of goods from execution-debtors, against whom a writ of execution had issued, the writ binding the goods upon its delivery to the sheriff, although, by reason of the goods not having been seized, the buyer had no means of knowing it. The present statute substituted ‘actual seizure’ of the goods for delivery of the writ to the sheriff, as that which is to bind the goods as against purchasers bona fide and for valuable considerations; but as no such fiction as constructive seizure was resorted to before the Act, the word ‘actual’ is of no peculiar force, and ‘actual seizure’ means no more than ‘seizure’.”
The effect of this here, in our view, is that the emphasis is that the threat, as seen by the threatened person, is not an empty threat, but a threat to use violence on him and if in the circumstances a reasonable man, looking at what was happening would have thought that violence might follow so that he handed over his goods as a result, then the offence of robbery is made out.
In our view therefore the learned trial judge was right to come to the conclusion that there was a threat of actual violence when he found that the 2nd accused threatened the 1st P.W. as a result of which he handed over the money so that the offence of robbery was made out. The appeal is accordingly dismissed.