Nweke V The State (1965)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C. 

The appellant was convicted of the murder on 1st March, 1964, at Ejilewe Ukwuagba Mgbo, Abakaliki, in Abakaliki Province, of one Omenyi Odoh; the trial was before J.A. Phil-Ebosie, J., who gave judgement on January 9th 1965; the appeal has come up with commendable speed.

On the 29th February, 1964, in the night, one of the village night-guards saw the appellant carrying a piece of sawn timber and challenged him; he dropped it and ran away; the night-guard picked it up and in the morning reported the incident to the deceased, the head of the night-guards. The deceased assembled other night-guards and invited two sawyers; these claimed the piece of timber as theirs. They proceeded to the appellant’s house, to arrest him and take him to court. They met him, and the deceased told the sawyers that he was the person who stole their timber. The sawyers noticed a pile of sawn timber at one end of the house and walked up to it; they brought out a piece which they claimed as their property. The appellant walked up and replaced it in his pile, and warned the sawyers to leave his premises; then he started to go fast towards his house. The deceased ordered that he should be arrested and followed him; the appellant succeeded in entering his house and came out immediately with a matchet; the deceased was then at the entrance to the house; the appellant attacked him and inflicted on him two awful wounds – one on the right shoulder and another on the right part of the abdomen, and thus killed him. The night-guards and the sawyers took to their heels; the sawyers left the village, and the police were not able to trace them in their home-place of Okpoto in the Tiv Division.

There is no need to set out the defence story that thieves came to steal and that he killed one of them, it was, rightly, not believed by the trial judge, and counsel for the appellant before us has argued on the question whether, upon the facts found by the judge and the evidence relevant to them, it was a case of murder or one of manslaughter.

The learned judge’s view was that the appellant killed the deceased because the deceased ordered that he should be arrested, and posed this question – Can that order amount to provocation? Section 283 of the Criminal Code states that provocation:

“includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person … to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.”The section states in its third paragraph that:-

“A lawful act is not provocation to any person for an assault.”

The learned judge refers to that third paragraph, and refers next to section 12 of the Criminal Procedure Ordinance, which provides that:-

“12.Any private person may arrest any person in the Region who in his view commits an indictable offence, or whom he reasonably suspects of having committed an offence, or whom he reasonably suspects of having committed by night an offence which is a misdemeanour.”

He goes on to say this:

“The evidence led was that accused was seen in the night carrying a piece of timber. That when challenged by a night guard he threw it down and took to his heels and that later some sawyers identified the timber as their property. Again in t he accused’s premises another piece of timber was identified and claimed by the sawyers. I should think that in the face of these facts, the night guards and that includes the deceased had grounds to reasonably suspect the accused of having committed an offence which is a felony and they had therefore a lawful right to arrest the accused. The arrest cannot therefore amount to provocation and the defence cannot avail itself of the provisions of Section 318 of the Code.”

Mr Obi Okoye, for the appellant, has argued that section 12 must be read together with section 14(1) of the Criminal Procedure Ordinance; this provides that:-

“14 (1) Any private person arresting any other person without a warrant shall without unnecessary delay make over the person so arrested to a police officer, or in the absence of a police officer shall take such person to the nearest station.”

Counsel points out that the deceased and his companions went to the appellant’s house to arrest him and take him to court, and the intention to take him to court, instead of the police station, affects the legality of the intended arrest. We do not think it does. According to section 130 of the Criminal Code: –