BABALOLA AND ANOR. V. THE STATE

• Pages: 27-31

BABALOLA AND ANOR. V. THE STATE

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BABALOLA AND ANOR. V. THE STATE

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MATHEW BABALOLA AND ANOTHER

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APPELLANTS

V

10 THE STATE

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RESPONDENT

SUIT NO. SC 177/1969

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

LEWIS,

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J.S.C.

15 FATAI-WILLIAMS, J.S.C.

20th February, 1970.

Criminal Law - Evidence - Deposition - Trial Judge relying on evidence of

witness - No evidence that Accused had kept witness out of the way

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Whether proper for Judge to admit deposition under s. 34(1) of the Evidence

Law - Robbery - "Threatens to use actual violence to any person" - Meaning

- Criminal Code s.401.

ISSUES:

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1. Whether it is proper for a Judge to admit a deposition under s.34(1) of the

Evidence Act where there is no evidence that the accused had kept the witness

out of the way.

2. What is the meaning of "Threatens to use actual violence to any person'' in s.

401 of the Criminal Code?

30 FACTS:

Two accused persons (policemen) accosted the 1st and 2nd prosecution wit-

nesses, while they were waiting to deposit money in a bank, led them to a house

and after entering it, the 2nd accused took a gun from his pocket and asked the

2nd prosecution witness to hand over the money. The accused persons took the

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money and asked the 2nd prosecution witness not to tell anybody what had hap-

pened and then let them go. The two accused persons stated that they had only

taken the prosecution witnesses ;or drinks and did not rob them at gun point. The

trial Judge disbelieved their story and admitted in evidence the deposition of a girl

at the house who claimed she saw the two accused with the prosecution witnesses

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in the house and some currency notes on the floor of the room they were in. The

girl could not give evidence in person because she had gone to Lagos with a sol-

dier. The trial Judge found the accused guilty of robbery and sentenced them ac-

cordingly.

On appeal, it was contended for the accused that the trial Judge should not

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have admitted the girl's deposition and also that he should not have convicted the

accused when it was not proved.

HELD:

1.

The trial Judge was entitled to rule as he did though no case of keeping the girl

out of the way by the accused persons had been established - to search for a

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girl who had gone to Lagos with a soldier would have caused unreasonable

delay neither was the trial Judge required to grant an adjournment.

2.

If a person threatens another with a gun 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. The test is whether the threatened person