KINGDON, C,J., NIGERIA, PETRIDES, C..J., GOLD COAST, AND FRANCIS, J. In this case accused was charged, on the first count, that he did on or about the 14th January, 1940, with intent to steal, demand six shilling’s from one Nwankwo Uwa by threatening that he would dismiss the said Nwankwo Uwa from his appointment as a mail- runner of the Jubilee School, if he the said Nwankwo Uwa did not pay him six shillings. It being alleged that accused was paid this six shillings, in two instalments of four shillings and two shillings, he was charged on the section count with stealing the sum of four shillings on or about the 14th January, 1940, and two shillings on or about the 24th March, 1940, from Nwankwo Uwa.
He was convicted on all three counts and sentenced, on each count, to fifteen months imprisonment with hard labour and to refund six shillings to complainant. It was ordered that the sentences should run concurrently.
Nwankwo at the trial gave evidence that the sum of four shillings was paid by his brother Okorie Uwa, the second witness for the prosecution, to the accused on the 14th January, 1940, in his own presence, and that he himself paid the two shillings to the accused on the 24th March, 194O,
In his statement to the Police on the 7th May, 1941, Nwankwo, however, stated that during the month of January, 194l, his mother gave him six shillings which he gave to his brother Okorie who handed it to accused in his presence. Okorie Uwa in his evidence stated that in June 1940, accused demanded sex shillings from his brother and three days later, four shillings of this was paid by him to accused who granted time for the payment of the balance. In the statement he made to the Police he stated, however, that in 1940 he paid six shillings to accused and later paid his brother two shillings to give to accused.
It will thus be seen that each of the two first witnesses stated at one time the sum demanded was paid in one sum and at another in two installments of four shillings and two shillings. There appears to be no explanation as to this discrepancy and the Judge appears to have accepted the version that the money was paid in two installments.
Although accused is charged with having demanded the six shillings by threats on the 14th ,January, 1940, it was not until May, 1941, that any complaint was made to the Police. It appears however according to the evidence of Owen Okorie, a teacher at the Jubilee School, that Nwankwo told him about the 6s in June or July, 1940, and he told Nwankwo to refer to Mr. T. K. Uchav then in Port Harcourt, Mr. T. K. Uchay, Manager and owner Jubilee School, stated that he first heard of the matter in 1941 and received no complaint in 1940, He appears to have heard about it on the 21st January, 1940, His evidence appears to have been somewhat vague. He could not remember if he visited the School in 1940 and later said he could not remember how often he was there in 1940. The reason he gave for his lack of precision was that he had not got his Diary and Records with him.
According to Owen Okorie, Nwankwo was told not to receive the money back from accused until Uchav returned from Port Harcourt while Okorie Uwa, in his statement to the Police, said that Uchay told Nwankwo not to accept the 4s because accused had spoilt the School.
It is clear from T. K. Uchay’s writ of the 22nd January, that Uchay was claiming £10 damages for creating confusion in the School “by giving false information and misleading the boys to “ leave the School “.
The case for the accused is that the charge was trumped up against him because he had ruined T. K. Uchay’ s School. He admits there was quarrel about 4s but he says that they were school fees due by Nwankwo who had ceased to be School-runner by reason of which he was exempt from School fees, by order of Okoro, Assistant Master in charge of the Infant School.
It is quite clear that although T. K. Uchay knew of the very grave charge made by Nwankwo on the 21st January, 1941, he took no steps to have the matter brought to the notice of the Police. In fact no charge was made to the Police until after accused had been dismissed from the School in March and gone to another School at Ututu.
Although accused was represented in the Court below by Counsel the attention of the Judge does not appear to have been drawn to the very serious discrepancies between the statements of the first two witnesses to the Police and to the Court. The trial Judge makes no reference to them in his very exhaustive summing- up and we are driven to the conclusion that he overlooked them and that he misdirected himself on this point.
In all the circumstances we are satisfied that the convictions cannot stand. We accordingly allow the appeal and quash the convictions and set aside the sentences and the order as to the refund of 6s, and direct that upon each count a judgment and verdict of acquittal be entered.
If we had not felt it our duty to quash the convictions we should have granted the appellant leave to appeal against the sentences and then reduced them because their severity appears to have been influenced by the conviction of the 25th February, 1942 (i.e.., the day before the trial in the present case started) which seems to have been regarded as a previous conviction, which, of course, it is not. The term “previous conviction” used in this sense means a conviction had before the commission of the offence charged. Here the offences were charged as having been committed two on the 14th January, 1940, and one on the 24th March, .1940, whereas the so-called “previous” conviction did not take place until the 25th February, 1942, It was therefore an error in law to take it into consideration in awarding sentence.
The appellant is discharged.