Salihu Hong V The State (1966)
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BAIRAMIAN, J.S.C
Salihu Hong was convicted on 9 April, 1966 by Bate J., sitting in the High Court (Northern Nigeria) at Jos, on the following charge:
“THAT YOU SALIHU HONG on or about the 24th day of February, 1965 at Yola in Adamawa Province, by putting Nelson Okolie Chukwurah in fear of taking his sister to an Alkalis Court dishonestly induced him to deliver to you one pound (£1) and you thereby committed an offence punishable under section 292 of the Penal Code and triable by the High Court.”
He applied for leave to appeal on the facts, and his application was considered on the 23rd June, 1966; the Court then stated that the conviction would be altered to an attempt, and the reasons will now be given.
Someone had made a complaint to the Native Authority Police at Adamawa, in which the applicant was serving as a constable, against the sister of Chukwurah (the person named as the victim in the charge) and Chukwurah bailed her out.
The complaint was dropped the day after it was made; but a few weeks later the applicant visited Chukwurah at night and told him that unless he paid some money, the applicant would take up the complaint in the Alkali’s Court and his sister would be imprisoned or fined. Chukwurah told the applicant to come for the money the following night; on the following day he reported the matter to the Nigeria Police, who arranged with him to trap the applicant, and the applicant was caught when he received two marked ten-shilling notes. Upon that evidence the trial judge found that all the ingredients of the offence charged had been proved. That finding we must discuss in the light of the Penal Code of Northern Nigeria.
The charge was laid under section 292 of that Penal Code, which provides that-
“292. Whoever commits extortion shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”
Extortion is defined in section 291 in these terms:
“291. Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the person so put in fear to deliver to any person any property or document of title or anything signed or sealed which may be converted into a valuable security, commits extortion.”
(We leave out the illustrations below the text). For present purposes we stress the words “induces the person so put in fear to deliver.” They mean that the person who delivers money or something else is driven by the fear of the threatened injury to deliver it. In the present case Chukwurah gave the applicant the two ten-shilling notes not because of fear created by the threat, but in consequence of the arrangement to trap him and have him punished; so the offence was not extortion. The applicant was, however, guilty of an attempt at extortion under section 293, which reads as follows:
“293. Whoever in order to commit extortion puts any person in fear or attempts to put any person in fear of any injury to that person or to any other, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”
The applicant is caught in the words “attempts to put any person in fear of any injury to that person or to any other”; he did make such an attempt, and ought to have been convicted of an attempt contrary to section 293-which could have been done by virtue of the provision in section 219 of the Criminal Procedure Code of Northern Nigeria, that-
“219. When a person is charged with an offence he may be convicted of an attempt to commit such an offence although the attempt is not separately charged.”
And a conviction for an attempt will be substituted.
We mentioned at the hearing the parallel situation which may arise under a charge of obtaining goods by false pretences in a case where the complainant parts with his goods, not because he was deceived by the pretence, but for some other reason, e.g., for the sake of laying a trap; and we referred to para. 1941 in Archbold (ed. of 1962) where authorities are cited for the view that the accused person may in such a case be convicted of attempting to obtain by false pretences.
The advice is given in para. 1960 that in a charge for the full offence of obtaining by false pretences prosecuting counsel should ask the complainant “Why did you part with your money?” or at least “Did you believe what the prisoner told you?”
The learned authors of Archbold go on to say-
“but proof that the false pretence operated on the mind of the prosecutor need not in every case be afforded by the direct evidence of a witness to that effect, if the facts are which could be suggested as having been the operative inducement.”
Likewise in a charge of extortion, although it may not be indespensible, it would be useful if prosecuting counsel asked the complainant “Why did you deliver what you gave to so-and-so?” in order to have direct evidence that the fear of injury threatened by the accused person was what made him yield to the dishonest demand of the accused person. In the present case Chukwurah, had he been asked that question, might have said that he was alarmed when the applicant made the threat, but he could not have said that later, when he gave the money-which is the crucial point of time-he did so out of fear
On the other hand, it is plain from the judgment under appeal that the learned trial judge was satisfied of facts which proved the applicant guilty of an attempt to extort contrary to section 293 of the Penal Code, and in exercise of the Supreme Court’s powers under section 27 of the Supreme Court Act 1960 we substitute a conviction of an attempt at extortion contrary to section 293 of the Penal Code and a sentence of eighteen months for the verdict found and the sentence passed by the High Court.
Other Citation: (1966) LCN/1311(SC)
