Ames, Ag. C.J. This is an appeal from the decision of the Supreme Court. Enugu, dismissing the appellant’s appeal to that Court against his conviction by the Magistrate, Enugu, on two counts of “public servants demanding property etc.” contra section 404 (1) (a) of the Criminal Code.
The facts can be stated quite fairly and briefly by saying that the appellant was at the material time a goods clerk of the Nigerian Railway at Aba Amufu; and that two traders wanted to rail palm oil from there to Jos, and that the accused made difficulties and by words and conduct made it clear that he would not book their palm oil unless they paid him certain money over and above the freight. It should be noted that he left them in no doubt that this was to be a payment for himself; he did not pretend that it was part of the railway freight and the two traders clearly did not think that it was.
Two grounds of appeal were filed with the notice of this appeal, but only one of them was argued; the other was abandoned; and one additional ground was subsequently filed with leave. It will be more convenient to deal with this latter one first. It is:-
“That the learned Judge was wrong in law in convicting the appellant when upon the evidence before the Court the appellant cannot be said to have received the money under colour of his employment.”
This ground can be quickly disposed of because we feel bound by the decision of this Court in the case of the Commissioner of Police v. Mrs. Ayo Potts-Johnson (1). In that case the accused was a lady Welfare Officer and in the course of her duty she visited three women and told them that they were harlots and that she was a Welfare Officer and that she was about to take them to the Welfare Office, and that if she did so it would mean they would be liable to imprisonment or a fine, but that she was, however, prepared to wink at it if they paid her some money. It is to be noted that she also was asking for money which she did not pretend was a proper fee or payment to be made to her; her very suggestion to the victims implied that it was personal to her. The appeal turned on the question of whether in demanding or asking for this money she did so “corruptly and under the colour of her employment” and this Court then decided that it was so done. If that was done corruptly and under the colour of her employment then this incident before us was also an offence committed corruptly and- under the colour of the appellant’s employment. This ground of appeal fails. The other ground of appeal is as follows:-
“2. The accused having been found not guilty on the second and third counts, the learned Magistrate was wrong to have convicted the accused in respect of the alternative charges in these counts.”
This arises out of the unusual way in which the charge was framed. Section 404 (1) (a) makes guilty of a felony” any person who, being employed in the public service of Nigeria corruptly and under colour of his employment demands or takes property from any person”. Under this it is sufficient either to demand or to take for an offence to be committed.
At the trial before the Magistrate there were six charges (as we will call them for the moment). On the first two, the appellant was acquitted, and so these do not come into the argument. The next, prefaced “Secondly”, was (omitting dates and places and the appellant being in the public service as a goods clerk of the railway, which is not material to the argument) that the appellant demanded the sum of 25s. from Jerry Onuoha; and the next, prefaced “Alternatively”, was that he took 25s. from Jerry Onuoha. The next, prefaced “Thirdly”, was that he demanded 7s. from Marcus Eke, and the next, prefaced “Alternatively”, was that he took 7s. from Marcus Eke. It is quite usual to prefer four such charges against an accused person, and clearly they could be the subject matter of four separate counts. What is unusual about it is the way in which they are numbered, which is the second and its alternative and the third and its alternative. The learned Magistrate called attention to this before the trial started and no objection was raised to its form, and the appellant consented to summary trial. At the end of the trial the Magistrate found that the appellant ..had committed the offence charged in the alternative in counts Nos. 2 and 3, that is to say, taking, contra section 404 (1) (a)”, and found him “guilty on counts Nos. 2 and 3 of taking the sum of 25s. and 7s. as charged in the alternative of these counts”.
The argument on this ground of appeal is that this finding was at least an implied acquittal on the two charges for demanding and that consequently there could be no conviction on the alternative charges for taking, because the acquittal for demanding means that there was no proof of force or threats and, so the argument is, one or other of these is a necessary ingredient to an offence under this section. With all respect we cannot agree to the first part of this argument. Where there are alternative counts concerning the same facts which charge alternative offences, which are incompatible with each other, a court will make a specific finding of not guilty on the one and guilty on the other. But where there are alternative counts, the latter of which is for an offence which is an addition to so to speak, or an aggravation of the former, a court will make a conviction of the latter, when proved, but will not make an acquittal on the former. It is impossible to do so because the facts relating to the offence of the former are contained in the offence of the latter on which the conviction is made. In such cases it is usual and proper to make a note on the record that the former counts
were not proceeded with owing to the conviction on the latter. The learned Magistrate here made no such note; but we do not think that matters. There was no acquittal on the main counts, and it is quite clear why, namely because the convictions on the alternative counts were convictions for what were continuations of the subject matter of the main counts.
That ought to have decided this ground of appeal but it does not because the argument developed into one of whether or not an element of force or threat is a necessary ingredient of the offence. This, we think, ought really to have been a separate ground of appeal, but we allowed the argument to continue and it was replied to.
We agree with the argument that there must be something in the nature of force or threat of some kind, by reason of which the victim is made to, or anyhow does part with his property and the offender takes it. This is why it is a form of stealing. Otherwise, and if the victim parted with his money, of his own free will and not under duress of some sort, it would not be stealing. On the other hand, the force or threat need not amount to the use of physical force or threat of it; for in that case the offence would be robbery under section 401.
We are of opinion that, although there must be force or threat or compulsion of some kind, it is sufficient if the offender so arranges matters or so acts that the compulsion is of that sort which is usually called the force of circumstances. It remains to consider whether or not the facts proved in this particular case amount to that, and we think that there was sufficient evidence to show that the hands of the victims were forced and that the learned Magistrate was right.
In our opinion the learned Magistrate was right in the inferences which he drew from the facts; and therefore the appeal must be dismissed.
Appeal dismissed.