Baker and Brooke, JJ., was delivered (Verity, C.J., declined to sign the judgment): The appellant was originally charged with three counts, each count being similar, but the sums taken and the person from whom the money was taken being different. The charges were: that on the 13th and 15th days of December last, being a person employed in the public service of Nigeria, to wit, a Lady Welfare Officer, corruptly and under colour of her employment demanded and received three separate sums of money from three separate persons in order that appellant might not cause each of them to be repatriated from Lagos as prostitute thereby committing an offence punishable under section 404 (1) (a) of the Criminal Code.
The section under which she was charged reads as follows:- “Any person who, being employed in the public service of Nigeria or in that of any other government, corruptly and under colour of his employment (a) demands, or takes property from any person.”
“It is perhaps noteworthy that the chapter under which this offence appears , , (Chapter XXXVI) is headed:- “Stealing with violence: Extortion by threats.”
The facts are not in dispute. And upon the case coming on for hearing before the learned Magistrate, Counsel for appellant submitted that:- “The evidence before the Court did not disclose an offence under section 404 (1) (a) C.C. the section only applying in cases where an accused person represents that he is entitled to what he is demanding as, for instance, where a Registrar of a Court before signing a bail bond asks for £50 to be paid as fees knowing full well that no fee is payable.”
The learned Magistrate in a considered judgment found the taking had been proved and expressed the view that:- “To demand or take corruptly, ‘under colour of employment' means for any person in an official position corruptly to use the power or interest of his position for rewards or promises by asking for or accepting a bribe.”
The Magistrate then proceeded to find appellant guilty on all the three counts and sentenced her to six months’ imprisonment. A second accused was charged with counseling one of the offences and found guilty thereof but he has not appealed to this Court.
From this decision appellant appealed to the Supreme Court and for the purpose of our present appeal the material part of her appeal was:- “1. The decision is erroneous in point of Law in that the learned Magistrate misdirected himself when he said that on the facts of this case the accused received the money under colour of her employment”.
Upon the hearing before the learned Judge, Counsel for appellant as before this Court again submitted that appellant was charged under the wrong section, the question being: did she do what is alleged “under the colour of her employment” He referred to Archbold, 31st Edition, Russell on Crime, Vol. 1, page 573 and the case of Rex v. Barnes, Vol. II, Raymond, page 1265 and submitted . that to bring the offence within section 404 (1) (a) the money must have been exacted as a fee.
Counsel for the Crown did not support the conviction on count 3 but submitted that the English Law of Extortion did not apply, that there was no mention of a fee in the Nigerian section and that as a Lady Welfare Officer she acted “ under the colour of her employment”.
The learned Judge came to the conclusion that there was no substance in the argument that appellant did not act “within the colour of her employment” and decided that:- “Appellant’s public duties took her among that class of women to which she accused her victims of belonging. The evidence clearly reveals that she held herself out to both her victims as a person, in that branch of the public service to which she, in fact, belonged even to the extent of producing her identity card to her second victim, If these were not acts done’ under the colour of her employment’ there is no meaning in the phrase.”
The learned Judge then proceeded to dismiss the appeal upon the first and second counts.
Against this judgment appellant has now appealed and her grounds of appeal can be confined to the interpretation of the words contained in section 404 (1) that is,” corruptly and under the colour of his employment”.
Counsel for appellant argued that the facts could not support a conviction under section 404 and that sections 98 or 116 of the Code were the sections applicable.
He submitted that section 404 (1) was identical with the English Common Law offence of extortion. He referred to page 1212 of Archbold, 31st Edition, where under the heading ,. Evidence in extortion when framing the indictment, (a). Provision should be contained, that the prisoner exacted money as a fee due or a greater fee than what is legally due or where money is exacted as a fee where none whatever is payable “ and submitted that on these authorities the appeal should succeed.
Crown Counsel submitted that by virtue of the decision of the Privy Council in Wallace Johnson v, The King (1), section 404 must be interpreted without reference to English law.
The relevant passage in the judgment which was a case of sedition is as follows: “The elaborate structure of section 330 suggests that it was intended to contain as far as possible a full and complete statement of the law of sedition in the Colony. It must therefore be construed in its application to the facts of this case free from any glosses or interpretations derived from-any exposition however authoritative of the Law of England or of Scotland.”
It is agreed that the one and only question for this Court to decide is what interpretation should be given to the words “corruptly and under colour of his employment”. Do they necessitate that before an official can be convicted under this section, there must be a demand made upon a representation however false. that it is part of the duty of the official to receive money which Counsel for appellant submits we should hold?
Counsel for the Crown submits that the words are clear and unambiguous and that we should not resort to English decisions to interpret the words used in the section and that the facts in the case are consistent with appellant having taken corruptly and “under colour of her employment”. Terms de la Ley define “Colour of Office” as “ signifying an act evil done by the countenance of an office and it bears a dissembling face on the right of the office whereas the office is but a veil to the falsehood and the thing is grounded on vice and the offence is a shadow to it “. This definition is no doubt many centuries old and little reliance should be placed on it at the present time. The Court has been unable to find any decision of other Courts where the section in question has been explained or defined; there is, however, a decision of this Court in the case of Rex v. Buddie U do Edem Eka (2). The appellant in that case had been charged with official corruption under section 98 (1) of the Criminal Code:-
“in that being employed in the Public Service as Sanitary Overseer being charged with the performance of a duty by virtue of such employment did corruptly ask (Dan Esu and others) or attempt to receive from Dan Esu and others the sum of £1, one goat and 5 yams.”
The words used by the appellant in the said case were:- “If you will not give me £1, a goat and 5 yams I will bring a Court messenger next time I come and whatever the condition of the village I will throw you into prison.”
The facts of the case are very similar to our own where tae appellant, visiting three women in the course of her duty, told them she concluded they were harlots, that she was a Welfare Officer, and that she was about to take them to the Welfare Office, that if she did it would mean they would be liable to imprisonment or a fine; she was, however, prepared to wink at it if they paid her some money.
The Court in their judgment after giving one ground for quashing the conviction proceeded to state:-
The other ground is that we agree with the view of the Inspector of Police in the High Court that the proper section under which the proceedings should have been brought is section 404 (1) and not 98 (1).”
The Court undoubtedly gave consideration to the meaning of the words “corruptly and under the colour of his employment “and came to the decision that given the above mentioned facts proper proceedings would lie under section 404 (1) (a).
The facts in this case are, in the opinion of this Court, similar to our own; in both cases it was not part of the accused persons: duty to receive money neither did either represent to their victims that it was again there is a request for money with the veiled threat of imprisonment failing payment. This Court agrees with the decision of the Court in the above case, and is of opinion it would be straining the law to place such an interpretation on the section so as to restrict it to offences relating to officials whose duty it was to receive money or to officials who falsely represented that such was their duty. It would also, in our opinion, be tantamount to reading into the said section ingredients to the offence which the section does not contain The Court read with considerable interest the English cases quoted by appellants Counsel and the practice of including the words mentioned by Counsel when drawing particulars of the offence of Extortion but is of opinion there is no necessity to have recourse to English Law for a definition.
For the above reasons, the appeal is dismissed and the judgments and sentence of the lower Court affirmed.
Appeal dismissed.