Stephen Nwakire V. The Commissioner Of Police (1992)

LawGlobal-Hub Lead Judgment Report

E. OGUNDARE, J.S.C.

The issue that calls for determination in this appeal is as to whether, on the facts of this case, the defence of bona fide claim of right under section 23 of the Criminal Code Laws of Eastern Nigeria, 1963 (applicable in Anambra State at the time of the trial of this case) was available to the appellant herein.

The appellant was charged in the Magistrate’s Court of the former Anambra State of Nigeria in the Nnewi Magisterial District on two counts of unlawfully conducting himself in a manner likely to cause a breach of the peace and willfully and unlawfully damaging four electric poles and four fluorescent lights property of one Albert Anochili. The evidence led at the trial disclosed that there had been a dispute between Albert Anochili and the appellant over a piece of land on which Albert erected a building resulting in the appellant instituting an action in the High Court at Nnewi over the said land in 1979. Subsequent to the institution of the action in 1981, Albert erected four poles on part of the land in dispute with a view to supplying electricity for the purpose of a funeral ceremony. The appellant went on the land and removed the four electric poles in consequence of which he was charged.

At the conclusion of the trial before the learned Chief Magistrate, the appellant was acquitted on the first count but convicted of the offence of wilfully and unlawfully damaging the electric poles. His defence was that as the land on which the poles were erected belonged to him that was why he removed the poles. In effect he set up a defence of bona fide claim of right under section 23 of the Criminal Code. The learned trial Chief Magistrate in rejecting this defence said:-

“The accused told the Court that the electric poles was (sic) erected by the complainant in 1981 when he was performing the burial ceremony of his late brother. If the electric poles were erected only in 1981 and had been tolerated by the accused, the accused did not tell the Court the immediate act of trespass that provoked him into doing the alleged damage on the complainant’s electric poles. In view of the above observations it is difficult for the Court to hold that the accused acted in good faith when he removed the complainant’s electric poles from the land. Having regards (sic) to the impact of the land exchange agreement Exhibit D and the weight of evidence the Court is inclined to believe that in contemplation of the damage which the accused did on the land he instituted the High Court action to prepare grounds for him to invoke section 23 Criminal Code to justify contemplated subsequent action on the complainant’s electric poles standing on the land. Since nobody can invoke section 23 Criminal Code with, bad faith the defence cannot avail the accused.”

Being dissatisfied with this judgment the appellant appealed unsuccessfully to the High Court. The learned appellate High Court Judge in dismissing the appeal observed:-

“The narrow issue for determination in the appeal is whether on the facts the learned Chief Magistrate was right in holding that the defence of a claim of right under section 23 of the Criminal Code did not avail the appellant and therefore justified in convicting him.

The test in the application of a claim of right under section 23 of Criminal Code has always been the subjective lest; the state of mind to be ascertained from the words and conduct of an accused. As succinctly put by Oputa, J. (as he then was) in Onwukwalony & Anor. v. Commissioner of Police (1967) F.N.L.R, 44 at 48 ‘did there exist in the appellant’s mind an honest belief in the justice and legality of his action’ and in Ufele and 4 Ors. v. Commissioner of Police (1973) 3 E.C.S.L.R. 42 at 44 it was held that the defence avails an accused person ‘acting under a right which in fact exists or where he is acting under a supposed right even though such a right may be unfounded either in law or in fact.’ See also Nguta & Ors. v. Commissioner of Police (1962) 6 E.N .L.R. 68. Applying the test to the facts and circumstances of the instant appeal, it is civilized of the appellant to institute an action against the complainant in respect of the land in October, 1979 but when in 1983 he proceeded without any apparent reason to uproot and damage the electric poles and fluorescent lights standing thereon (property of the complainant) he showed scant respect of law and order …

The Court exist (sic) to protect those who come to its altar and who are not able to protect themselves but any person who by brute force or by words or conduct willfully (sic) the law forfeits his right and privilege to protection under the law.

I think there was sufficient evidence to justify the learned Chief Magistrate’s conclusion that section 23 did not avail the appellant.”

Still dissatisfied, the appellant appealed further to the Court of Appeal. The latter Court by majority (Katsina-Alu and Oguntade J.C.A. with Uwaifo J.C.A dissenting) dismissed the appeal. In his lead judgment, Oguntade J.C.A, observed as follows:-

“In relation to a dispute as to the ownership of land, where one of the parties to the dispute does anything which forms the subject-matter of a criminal charge, what the expression means is this:

(1) The person accused must believe that he has a lawful claim. It does not matter if it is found later that the accused is wrong in his belief.

(2) The accused must show that in doing the act complained of he is honestly asserting his right or claim of ownership over the land.