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Nweke V The State (1965) LLJR-SC

Nweke V The State (1965)

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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:-

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“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: –

“Any person who, having arrested another upon a charge of an offence, willfully delays to take him before a court to be dealt with according to law is guilty of a misdemeanour, and is liable to imprisonment for two years.”

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If a private person arrests lawfully someone by virtue of section 12 of the Criminal Procedure Ordinance, and takes him to court, he can say he did so in obedience to section 130 of the Criminal Code; and if he takes him to a police station, he can say that he did so in obedience to section 14(1) of the Criminal Procedure Ordinance, in the event of being prosecuted under section 130 of the Criminal Code. The ultimate destination of an offender is the court; the police, too, have to take him there with reasonable speed. There is no substance in counsel’s first point.

In connection with that point we would refer to section 21 of the Constitution of the Federation; it was not mentioned in argument but 8 is relevant. Subsection (1) provides that:-

“No person shall be deprived of his personal liberty save in the following cases and in accordance with a procedure permitted by law.

(c) for upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal for the purpose of bringing him before a court in execution of the order of a court offence.”

That fortifies our view that the ultimate destination is the court.

Here we would add, for the sake of the second point (with which we shall deal in a minute), the provision in subsection (2) of the said section 21; it reads:-

“Any person who is arrested or detained shall be promptly informed, in language that he understands, of the reasons for his arrest or detention.”

The provision in section 5 of the Criminal Procedure Act reads as follows:-

“Except when the person arrested is in the actual course of the commission of a crime or escape from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest.”

Those provisions were not mentioned in argument but are relevant. In our view those provisions on the need to inform the appellant why he was being arrested were sufficiently complied with by the deceased, as will appear from our discussion of the second point argued by counsel for the appellant.

The second point was that the appellant, an ignorant native, found twelve men in his premises, who, without any apparent authority, threatened to arrest him; they did not tell him what they would do with him after they had arrested him, and the appellant acted in defence of his liberty; he did not know whether the deceased was acting lawfully in coming to arrest him and he knew nothing of Section 12 of the Criminal Procedure Act.

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His ignorance of that section cannot avail him under the plea of provocation, for by the definition in section 283 of the Criminal Code (which has been cited so far as relevant to the argument) there must be a wrongful act or insult for the loss of self-control, and if the party were entitled in law to arrest the appellant their threat to do so was not a wrongful act. There was no serious argument on the appellant’s behalf that they were not entitled, and it is clear that they were. When the party came to his premises, the deceased in his presence told the sawyers that he was the person who had stolen their timber, viz. in the previous night, and in his presence the sawyers also found a piece of their timber in his pile. According to Adada Oge (p.w.2) the team of night guards was formed to protect the town and it was agreed by the whole town that anyone found stealing should be arrested and taken to the court for trial. He said so at the very end of his evidence in chief, but he was not cross-examined on it. We have also to observe that the party went unarmed to the appellant’s house, and when they saw him come out and attack the deceased, they took to their heels, the deceased himself tried to run away when the appellant came out of his house armed with a matchet, but the appellant went after him and hacked him, and it was twenty yards from the house that the deceased was later found lying dead.

This was a gratuitous murder. The case cited – Chapman, 12 Cox C. C. 4 (on Killing in the excitement of the moment and without malice), Hammar Dangar, 10 W.A.C.A 225 (a case of unlawful arrest), and Joseph Adu, 14 W.A.C.A. 462 (a case of unlawful arrest and in which the killer thought he was under attack), do not help. In the present case there were no extenuating circumstances.

Other Citation: (1965) LCN/1265(SC)

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