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.
A few consequences flow from the above two factors. If an accused knows that he has no scintilla of interest to the ownership of a piece of land in respect of which he has done the act complained of in the charge, it follows that he could not have been honestly asserting a claim of ownership over the land. On the other hand, a person may believe that he has a lawful claim and still be guilty of the act complained of if it is shown that in doing the act complained of he was dishonestly asserting his claim of ownership. This is why in my view, the author of Stephen’s History of Criminal Law of England, Vol. III at page 121 wrote:
“This, if not the only is nearly the one case in which ignorance of the law affects the legal character of acts done under its influence.”
Section 23 of the Criminal Code only protects a person with a claim (whether real or fancied) to property who does a criminal act in relation to the property in the honest belief that he has a right to assert his claim of ownership in a manner which turn out to constitute the offence complained of. In other words the law protects the ignorance of the accused as to the proper manner to pursue his claim of ownership.”
After considering the facts of the case before him, the learned Justice of Appeal went on to hold:-
I am therefore satisfied that the appellant believed he had a lawful claim to the ownership of the land. The appellant has therefore satisfied the first conditional I stated above.It is with respect to the second condition that the defence of the appellant crumbles. Could the appellant have been honestly ignorant or mistaken as to the method to be adopted to pursue his right I answer that question in the negative for reasons which will presently emerge.”
He finally concluded:-
“The appellant in his defence said that the electric poles which he removed were erected in August, 1981 and that he removed them in June, 1982, P.W.3 said the poles were erected in 1974. But whichever way one looks at, it will not detract from the fact that the appellant had filed his suit in respect of the same land in 1979. He admitted that it was upon the same land in respect of which he had sued in 1979 that he went in 1982 to remove electric poles. It is therefore not correct to say that the lower Court did not give consideration to the appellant’s defence. The correct view to hold is that it would not be any defence to the appellant even if the complainant had erected the poles at any time subsequent to the commencement of appellant’s suit in Court. The electric poles erected in 1981 will not affect the trespassory nature of the complainant’s entry on the land earlier than 1979, and in respect of which the appellant sued, if indeed a trespass it had been. It was for the Court to decide the matter.
It is my firm conviction that on the facts on this case, a defence under section 23 of the Criminal Code was not available to the appellant”
In his own contribution Katsina-Alu, J.C.A. observed as follows:-
“The defence under section 23 of the Criminal Code is available to an offence relating to property. The question here is whether the applicant could avail himself of the protection under section 23. A person has a claim of right within the meaning of section 23 if he is honestly asserting what he believes to be a lawful claim even though it may be unfounded in law or fact: See Rex. v. Bernhard (1938) 2 KB 264; Dabierin v. State (1968) 1 All NLR 138. The section therefore protects a person with a claim to property who does a criminal act in relation to that property in the honest believe (sic) that he has a right to assert his claim of ownership in a manner which constitutes the offence complained of. Put simply: the law protects his ignorance as to the proper manner to pursue his claim of ownership.”
The learned Justice after a review of the facts concluded:-
“Having taken the dispute to Court, the appellant should have awaited the result of the litigation and the appropriate order before taking any further step. He had no right to take the matter into his own hands once the Court was seized of it.”
It is against this majority judgment of the Court of Appeal that the appellant has finally appealed to this Court.
There are two grounds of appeal which, without their particulars, read as follows:-
- The majority Justices of the Court of Appeal- Oguntade, Katsina-Alu, JJCA. – erred in law when they held that section 23 of the Criminal Code did not avail the appellant.
- The verdict or decision is unreasonable and/or cannot be supported having regard to the evidence.
Learned counsel for the appellant filed a written brief of argument. In his brief of argument Mr. Anah, of counsel for the appellant, sets out two issues as calling for determination in this appeal. The two issues which are adopted by Mrs. Izundu learned Deputy Director Ministry of Justice, Anambra State, in the Respondent’s brief of argument are as follows:-
- Whether a bonafide claim of right under section 23 of the Criminal Code would avail the appellant who having brought an action in the High Court over a piece of land went into the said land and removed electric poles and fluorescent lights installed by the Defendant/ Respondent.
- Whether the majority judgment is unreasonable and/or cannot be supported having regard to the evidence.
In my respectful view however, the only issue that calls for any serious consideration is the first one above.
Mr.Anah in the Appellant’s brief argues strongly in favour of the dissenting judgment of Uwaifo, J.CA., especially the passage of the learned Justice’s G judgment wherein he said:-
“Once an accused raises, by the evidence, a claim of right in an offence involving property with which he is charged, such as malicious damage to property, the burden is on the prosecution to prove the absence of a claim of right made in good faith because that defence negatives the requisite mens rea for malicious – or what is also known as willful and unlawful – damage to property: see Kamara v. Director of Public Prosecutions (1973) 2 All ER 1242 at 1252 where Lord Hailsham LC said: ‘On general principles in all these cases the burden would rest on the prosecution to exclude these defences, which I will describe as a claim of right made in good faith.”
It is learned counsel’s contention that all that was required of the appellant to avail himself of the defence under section 23 is to show to the satisfaction of the Court that he had a lawful claim to the ownership of the land in dispute. It is his further view that the question of reasonableness or otherwise cannot be imported into that defence. In his oral submission before us, Mr. Anah contended that the Court of Appeal having agreed that the appellant had a genuine case he (the appellant) ought to have been given the benefit of section 23 of the Criminal Code. He refers the Court both in his brief and in his oral argument to a number of authorities such as Nwosu v. Commissioner of Police 10 E.N.L.R. 94; Ejike v. Inspector-General of Police 5 E.N.L.R 7,9-11 and Ohonbamu v. Commissioner of Police (1990) 6 NWLR (Pt. 155) 201 ,209C. He urged the Court to allow the appeal and acquit the appellant on the charge for which he was convicted.
Mrs Izundu in her own brief, argues as follws:
“The learned counsel for the appellant has referred to a lot of authorities. All these decided authorities go to show that where there is dispute as to land, any action done whether reasonable or unreasonable, the accused can seek defence under section 23 (now section 13) of the Criminal Code. Unfortunately, this seems to be the law. But one might query, this appellant who definitely is a civilized man, at least having gone to the University abroad, for that matter, and having instituted an action in Court for trespass, could it be argued, and seriously too, that he honestly believed that what he did was done in good faith Could he argue that he did not know he could go to Court and ask the Court to make an order for the removal of the poles”
Later in her brief she again argues:-
“One would then concede that on decided authorities this appellant could have successfully pleaded section 23 (now section 13) of the Criminal Code, if it was proved that he, after instituting a civil action in Court, believed that that was the only way out: The case of Registered Trustees not- withstanding. However my Lords, I am not done. With all due respect to all the great Justices of our noble country I do not accept that section 23 (now section 13) of the Criminal Code which is an adaptation of section 1 of the Larceny Act of (1916) was intended to cover wilful and unlawful damage to property.”
She finally submits that section 23 does not cover the issue of wilful and unlawful damage to property as laid in the charge against the appellant nor would it cover forcible entry. It is counsel’s view that the section only covers offences relating to stealing or fraud. She urges the Court to dismiss the appeal and uphold the conviction of the appellant.
I have given consideration to the submissions made by learned counsel both in their briefs and oral arguments before us. I must begin by saying that I do not share Mrs. Izundu’s view that section 23 applies only to offences relating to stealing or fraud; that view runs counter to all authorities on the point and even to the wording of section 23 itself. Section 23 provides:-
“Malicious damage means malicious damage to the property of another. If you think you are destroying your own property you do not maliciously destroy the property of another even though the property belongs to that other. It is a short step from this to say that where you know that the property belongs to another but believe that you have the legal right to destroy it you are not guilty of malicious damage. There can be no rational distinction between belief in a right to destroy resulting from ownership and belief in a right to destroy resulting from rules of law independently of ownership.”
The learned author cited the following authorities in support of the views expressed in the above passage, to wit: R. v. James (1837) 8C & P 131, 173 E.R.429; R. v. Day (1844) 8JP 186 and R v. Twose (1879) Cox 327 and R v. Ratter (1908) (25 TLR 73), I CAR 74. In Ejike v. Inspector-General of Police (1961) 5 E.N.L.R. 7 learned counsel for the appellant in that case referred the Court to the above passage. Mbanefo C.J. at page 9 of the report observed and quite rightly in my view as follows:-
“The cases bear out the proposition that in the honest belief that you have a right to do so you may without being criminally responsible destroy the property you know belong to another, and this is so even though your belief may be mistaken.”
Learned Crown Counsel in reply to the submission of the learned counsel for the appellant cited the case of R. v. Clemens (1898) 1 QB 556 (C.C.R.) where the test of reasonableness was imported, into the defence of bonafide claim of right. In R. v. Clemens, the defendants, in pursuance of a claim of public right of access for the purpose of recreation, accompanied by a large number of other persons, entered upon the land and destroyed a wooden building that had been erected upon part of it. The defendants were charged with a misdemeanour under section 51 of the Act of 1861 ’97 Malicious Damage Act, 1861. It was held that the proper charge to the jury was:
“Did the defendants do what they did in the exercise of a supposed right Adding that if, on the facts before them, the jury come to the conclusion that the defendants did more damage than they could reasonably suppose to be necessary for the assertion or protection of that right, then the jury may properly and ought to find the defendants guilty of malicious damage under S.51”
Mbanefo C,J. in his judgment at page 9 of the report went on to say:-
“Glanville Williams has doubted the soundness of the test of reasonableness saying that it was not in line with earlier authorities but Clemens was followed in Heewen v. Crutchley (1903) 68 J.P. 53 and Roadway v. Becker (1951) 2 All E.R. 349 also cited by Crown Counsel; and until the theory of reasonableness enunciated in these cases is overruled by a higher Court, I feel bound to regard it as still good law.”
He then applied R v. Clemens to the case before him but, on the facts, allowed the appeal.
It is pertinent at this stage to state the facts in Ejike v. Inspector-General of Police. One Matthew Ibeawuchi bought a piece of land from one Mr. Okechukwu. When on the 1st February 1960 the complainant began to prepare the ground for a garden, the appellant came and protested. The complainant began to mould some cement blocks on the 4th of February and the appellant came to the scene on the 5th of February and challenged his right to do so. Subsequently the appellant hired some labourers to go and demolish the blocks. Early in the morning of the 6th of February, the hired labourers destroyed some 526 blocks belonging to the complainant. On those facts and applying the test of reasonableness imported into the defence of bonafide claim of right by R. v. Clemens (supra) Mbanefo C.J. held that the appellant had not acted unreasonably in destroying the 526 blocks and therefore section 23 of the Criminal Code availed him.
In Nwosu v. Commissioner of Police (supra) BalonwuJ. also applied the test of reasonableness. The English authorities were considered by the Court of Appeal in Oteri and 4 Ors. v. Afonughe & Anor. (1979) 2 CA 273; Agbaje J.C.A (as he then was) in his judgment declined to endorse the theory of reasonableness, and I
agree with him. He said:-
“This is not to say that we endorse the view that the extent of action taken to assert the right claimed must be reasonable before a defence of a claim of right can be upheld. We have not had a full dress argument on this point before us for counsel for the complainants did not give notice to the defendants that he was going to re-open the matter before us. And as we commented above the point had not received the consideration of the learned Judge on appeal. So we are not here expressing a definite or concluded view on the point. However we must observe that the decision in R v. Clemens had been criticized by some academic lawyers. For instance Professor Glanville Williams pointed out in his book ‘Criminal Law’; “The General Part,” 2nd Edition at 311, that the decision in R v. Clemens (1898) 1 QB. 556. in its requirement of reasonableness as to the extent of action to assert a claim of right is difficult or impossible to reconcile with R.v. Day (1844) J.P. 186; R. v. Twose (1879) 14 Cox 327 and R. v. Rutter 1 CAR. 174. In R. v. Day, a defence of a claim of right succeeded where a person who had distrained sheep damage feasant injured them because their owner would not pay for the damage. And a similar defence succeeded in R. v. Twose where a woman set fire on furze growing on a common thinking that she had a right to do so to improve the growth of the grass and also in R. v. Rutter where a tenant cut down trees claiming a right to do so because he had planted them himself. And more recently in R. v. Skivington (1967) I All E.R. 483 the appellant went to the offices of the employers of himself and his wife on a Wednesday. He drew a knife and demanded his wife’s wages which according to him, he had her authority to collect. He pushed an assistant manager into an office where a safe was opened and there, at the point of knife, the appellant was given two wage packets containing money. Wages were not due until Friday. At his trial on a charge of robbery with aggravation, contrary to section 23(1) of the Larceny Act, 1916, the appellant contended that he had an honest belief that he had a right to the money. The trial Judge directed the jury that before the appellant could maintain a defence to the charge they must be satisfied that he had an honest belief that he was entitled to take the money in the way in which he did take it. On appeal against conviction it was held that a claim of right was a defence to robbery or any aggravated form of robbery, and it was unnecessary to establish that the accused must have had also honest belief that he was entitled to take the money in the way in which he did take it. The appeal was allowed.”
I had cause in Ohonbamu v. Commissioner of Police (supra) to consider the scope of section 23 and after a review of all the authorities that came to my notice I concluded as follows:-
“It is my view, after a full consideration of the authorities, that R. v. Clemens was wrongly decided. In my respectful view, once it is shown that an accused person has a bonafide claim of right the required mens rea is negatived. The extent of the damage done by him while it may be a factor to be taken into consideration in determining as a fact, whether his claim of right is honest or bona fide, cannot restore the mens rea that is already negatived by the finding that he had the honest belief that he had the right to do what he did. In view of this conclusion therefore I must hold that all Nigerian authorities that followed R. v. Clemens are wrongly decided.”
I am still of this view.
Uwaifo JC.A, in his dissenting judgment in the appeal now on hand has this to say:
“Since the decisions of the Supreme Court in Inspector General of Police v. Emeozo & Ors (1957) WRNLR 213 where R. v. Bernard (1938) 2 KB 264 was approved and Dabierin & Anor v. The State (1968) 1 All NLR 138 where R. v. Skivington (1967) 1 All ER 483) was approved, there is no doubt that a claim of right made in good faith is a defence to all offences relating to property. An accused will not be held criminally liable so long as he asserted that (sic) he honestly believed to be a lawful claim of right even though it might be unfounded in law or in fact.
This defence applied to an offence of robbery where there was a threat of injury to a victim if certain demands for money or property were not met: See R. v. Skivington (supra); or mere stealing: See R. v Bernard (supra); or of willful and unlawful damage to property: See Nguta & Ors. v. Commissioner of Police (1962) 6 ENLR 68; Iroaghan v. Commissioner of Police (1964) MNLR 48; Onwukwalonye v. Commissioner of Police (1967) FNLR 44; The State v. Anah & Ors. (1976) 6 ECSLR 21.
Once an accused raises, by the evidence, a claim of right in an offence involving property with which he is charged, such as malicious damage to property, the burden is on the prosecution to prove the absence of a claim of right made in good faith because that defence negatives the requisite mens rea for malicious – or what is also known as wilful and unlawful – damage to property: See Komara v. Director of Public Prosecutions (1973) 2 All ER 1242 at 1252 where Lord Hailsham LC said:
‘On general principles in all these cases the burden would rest on the prosecution to exclude these defences, which will describe as a claim of right made in good faith.’
All these cases were recently considered by this Court in Ibeziako & Ors. v. The State (1989) CLRN 123 where it was pointed out that when the defence under section 23 is available it negatives mens rea and that the honest belief in the claim, not the reasonableness of it, is the bastion of the defence. This Court said at page 139 of a bona fide claim of right:
“That defence appears to be very wide in scope…….. In order to be criminally liable in all offences other than those rare cases of strict liability, mens rea is required. Where a claim of right is available as a defence it negatives the requisite mens rea. In some cases the elements constituting the mens rea are not difficult to ascertain. Take the instance of willful and unlawful damage to property: a claim of right presents no difficulty and will avail an accused to the appropriable circumstance. If however ownership is contested, the burden of proving mens rea must be discharged by the prosecution. The issue may turn on the strength of the claim to ownership according to the evidence or on the honesty of the belief in the claim according to the circumstances. The relevant factors then simply are the ‘claim to ownership’ not necessarily ‘ownership’ and the ‘honest belief in the claim not necessarily the reasonableness of the claim’…………. The defence is not limited to whether the accused honestly believed he was the owner of the property or had a right to it but extends to whether he honestly believed he had a right to do what he is accused of.’”
I agree entirely with the above exposition of the law. It is my humble view that what is required to be proved by an accused person under section 23 is his honest belief in his claim to the right to do what he is accused of doing, provided of course that what he did would have been lawful on the assumption that the right he claimed existed.
Relating the law to the facts in the case on hand, Uwaifo J.C.A. went on to say:
“To recall some of the facts of the present case, the appellant had a land dispute in Court with P.WA. While the case was pending the said P.W.4 erected electric poles on the land for the purpose of extending light to where he performed a funeral ceremony. After the ceremony, the appellant demanded the removal of the poles but P.W.4 would not comply. The appellant thereafter removed them himself. In those circumstances it will be irrelevant to consider whether he acted reasonably or in a civilized manner or without respect for the law. It is his honest belief that he had a right to do what he did even if, from all the circumstances, it turned out that the right did not exist in fact or in law that is relevant. I do not think he can be said not to have had that honest belief particularly as what pricked his sense of right to the land which led him to what he did was not considered by the trial Court nor the Court below.
The fact that a civil case was already in Court between the appellant and the complainant (P.W.4) in respect of the land in question does not make any difference in the present circumstances. To suggest, as the learned appellate Judge did, that it was uncivilized of the appellant to do what he did simply because he had filed an action in Court is to test his honesty against what a ‘civilized’ person would have done. That goes contrary to the principles established for the defence under section 23 to be successfully raised. The true position, in my view, is that the pendency of a civil action in Court does not necessarily affect the honesty of a person in the appellant’s position in thinking he had a right to react to the P.W.4’s refusal to remove the electric poles from the land. The pendency of the action may at times be taken as reinforcing the fact of a genuine (sic) dispute over property. But the important thing is to consider the essential facts that could determine the honesty or otherwise of a person who relies on a bona fide claim of right.”
Again, I have nothing to quarrel with in the passage above. Indeed, the learned Justice of Appeal correctly related the facts to the law. What is essential is that the appellant believed honestly that he had the right to remove the poles from his land. It is immaterial that he acted in an “uncivilized” way or “unreasonably”. Clearly his conduct was not as heinous as the conduct in Ejike v. Inspector-General of Police (supra) where the appellant in that case caused 526 blocks to be destroyed; Mbanefo C.J. held that that conduct was not unreasonable. Thus, even if the theory of reasonableness could be imported into the defence of bona fide claim of right under section 23, I would not agree that the appellant’s conduct in removing the four poles in the circumstances of this case was unreasonable. In any event, that theory has no place in the defence. Once the appellant introduced evidence of a claim of right the onus shifted to the respondent to approve absence of a claim of right and the latter having failed in this case to discharge that burden, the appellant was entitled to an acquittal. It cannot be doubted that it is lawful of a landowner to remove any unlawful poles standing on his land.
In conclusion I hold that the Court below was wrong in affirming the conviction of the appellant. His appeal is allowed and the conviction and sentence imposed on him are set aside; he is acquitted and discharged. The fine of N500.00 imposed on the appellant by the trial Chief Magistrate, if already paid, is to be refunded to the appellant forthwith.M. L. UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by my learned brother Ogundare, J.S.C. I entirely agree with the judgment. The view taken by Uwaifo, J.C.A. in his minority judgment in the Court of Appeal is, in my opinion, correct.
Accordingly, the appeal succeeds and it is hereby allowed. I endorse the order contained in the judgment of my learned brother Ogundare, J.S.C.S. KAWU, J.S.C.: I have had the privilege of reading, in draft the lead judgment of my learned brother, Ogundare, J.S.C which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal should be allowed. For the reasons so comprehensively set out in the lead judgment. I too will allow the appeal and set aside the conviction of the appellant and the sentence imposed upon him. I abide by the consequential orders made in the lead judgment.
P. NNAEMEKA-AGU, J.S.C.: There is indeed only one real issue for determination in this appeal. It is the first of the two issues formulated by learned counsel for the appellant which has also been accepted by learned counsel for the respondent. That issue was stated as follows:-
“The 1st issue for determination is whether a bona fide claim of Right under section 23 of the Criminal Code could avail the appellant who having brought an action in the High Court over a piece of land went into the said land and removed electric poles and fluorescent lights installed by the defendant/respondent.”
My learned brother, Ogundare, J.S.C has fully set out the facts from which the above issue has arisen for determination in this appeal and the respective opinions of the learned Magistrate, the learned High Court Judge on appeal and, by a split decision, the Court of Appeal Enugu Division, on the issue. I shall not repeat them. It is enough for me to state that I shall consider the above issue on the basis of the following facts: that the appellant and the complainant had conflicting claims to ownership of a piece or parcel of land situate at Nnewi, in Anambra State; that to drive home his claim to the land,the Appellant in 1979 filed a claim in the High Court for trespass and injunction against the complainant; in 1981 -during the pendency of the suit – the complainant went upon the land and installed some electric poles and fluorescent lights for purposes of a funeral ceremony; that after the ceremony the complainant refused to remove the poles and the lights despite demands by the appellant; that in June,1982 i.e. ten months after their erection the appellant then went upon the land and removed and destroyed them; that as a result, he was charged to Court, tried and convicted, and the conviction was confirmed by both the High Court and, by a split decision, the Court of Appeal. Hence, this further appeal.
Now there can be no doubt that our law on bona fide claim of right under section 23 of the Criminal Code of Eastern Nigeria, applicable in Anambra State or section 21 of the Laws of the Western Region (1959) is not in a tidy state. Two clear lines of authorities are discernible from our numerous decided cases on the point. The first line of cases, following such English decisions as Rex. v. Barnhard (1938) 2 KB 264 and R v. Clayton (1920) 15 Cr. App. R. 45 held that the defence under the section availed an accused person if he did the act which has been called in question with respect to property on the honest belief that he had a right to the property, even though he might have no legal right to the property: Whether his claim was right or wrong, he had a bona fide claim to it and hence can take advantage of the defence. See also R v. Skivington (1967) 1 W.L.R. 665. This principle has been followed and applied in many decided cases in this country, including:-
Fidelis Okoli v Commissioner of Police:
Appeal No.: AA/1CA/72 of May, 16, 1972;
Chita Nguta & 2 Ors. v. C.O.P. (1962) 6 E.R.L.R. 68
Fashions lroaghan v. C.O.P. (1964) MNLR 48
Nwosu v. C.O.P. (1966) 10 E.N.L.R. 94
A second line of cases introduced an element of reasonableness of the act called in question into the consideration of the defence. The fons et origo of this line of decisions is the decision of the Queen’s Bench Division in England in R. v. Clemens & Ors. (1898) 1 Q.B. 556. In affirming the conviction of some inhabitants of Newquay who had destroyed and hauled into the sea a wooden structure erected on a meadow over which they claimed some public rights, Lord Russell of Killowen, C.J. said:
“The proper direction to give to a jury in such a case is that they should ask themselves this question: Did the defendants do what they did in exercise of a supposed right adding that if, on the facts before them the jury came to the conclusion that the defendants did more damage than they could reasonably suppose to be necessary for the assertion or protection of that right, then the jury may properly and ought to find the defendants guilty of malicious damage under section 51.”
Having come to the conclusion that they did more damage than was reasonably necessary, he affirmed their conviction. The idea of grading the degrees of damage that can be justified under the section has been doubted by high authority: See Russell on Crime (12th Edn.) at p.1325. Mbanefo, C.J. in Ejike v. I.G. of Police (1961) 5 E.N.L.R. 7 doubted the correctness of the decision but held that it remained the law until it was overruled. In spite of this, that line of reasoning appears to have persisted: See for an example, the decision of Holden, C.J., in Commissioner of Police v. Adokiye Okpaku & Ors. Appeal No. PHC/13CA/72 (unreported), where he held that the defence cannot be relied upon to justify excessive destruction of the complainant’s property. See also: Nwachukwu v. Commissioner of Police (1970-71) 1 E.C.S.L.R. 110.
I may pause here to observe that all the cases so far referred to were decisions of the High Court. Up to a point, the only decision of a Court of higher jurisdiction I am aware of is the case of R v. Nicholas Vega (1938) 4 WACA 8. In that case, the element of reasonableness crept into the decision. But fortunately it did not relate to the destruction but to the belief. Their Lordships said: “We think that he acted in good faith, entirely innocently in the bona fide and reasonable belief that the old sheets had been abandoned by the Government.”
It is noteworthy, however, that section 23 of the Criminal Code simply provides as follows:-
“A person is not criminally responsible, as for an offence relating to a property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
It is my view that, on the very words of the section, reasonableness of the belief is not an ingredient of the defence. Indeed it has often been said that the devil himself knows not the minds of men. Reasonableness or otherwise will, in my view, be difficult to quantify. It is, therefore, better to regard it as a mere surplusage in the con of Vega’s case.
What then, I may ask, is the attitude of this Court to the principle in the Case of Clemens which has been criticized in Ejike’ s case. My answer derives from the case of Sunday Dabierin & Anor v. The State (1968) 1 All NLR 138 where this Court interpreted section 21 of the Criminal Code of Western Region of Nigeria(Cap.28) which is in pari materia with section 23 of the Criminal Code of the Eastern Region under construction. In that case, Fakayode, J. upheld the conviction of the appellants by the learned Magistrate sitting at Ife. The appellants had been convicted of stealing cocoa which they claimed belonged to them because the land upon which the cocoa grew belonged to them. Their Lordships – Brett, Coker and Madarika, J.J.S.C., referred to the opinion of Fakayode, J. in the judgment where he stated:
“In a claim of right, the claimant must show that he had honest and reasonable belief in pursuing his assertion. The question of honest belief is a matter to be inferred from the facts of the case.”
and then held:
“Section 21 of the Criminal Code does not require that the claim shall be a reasonable one In our view section 21 lays down a rule which is applicable to offences relating to property to the same effect as that in definition of “larceny” in the Larceny Act, 1916, section 1, so that a claim of right exists whenever a man honestly believes that he has a lawful claim, even though it may be completely unfounded in law or in fact, as was held in R. v. Skivington (1967) 2 W.L.R. 665. It is enough if the belief is honestly held and there can be no justification for reading into section 21 of the Criminal Code any implied requirement that it should also be a belief which it was reasonable for the accused person to hold.”
I agree with this very clear statement of the law. This accords with the very words of the section. The word “reasonable” was not used by the draftsman or in the expression of that section. After all, the primary rule of construction is the literal construction which requires that we give the words used in the statute, and only those words, their ordinary and natural meaning, omitting no words and adding none, in the construction we arrive at, save in accordance with the recognized rules of construction, none of which is relevant here, or any reason is shown why the natural, ordinary, and grammatical meanings of the words should not be adhered to. See on these: Becke v. Smith (1836) 2 M and W 191, p.195; Felix v. Thomas (1967) A.C. 292, p.306; Ministry of Pensions & National Insurance v. Jones (1966) 1 Q.B. 484. Indeed no contrary rule or canon of construction has been urged on us. I am, therefore, of the clear view that the law was correctly stated above. I may observe that the above statement of the law is in accord with another appellate decision of the High Court of Western Region in Inspector-General of Police v. Emeozo & Ors. (1957) W.R.N.L.R. 213. While it could be said that the decision in Emeozo’s case had not the finality of decisions of this Court in that appeals still lay therefrom to higher Courts, such could not be said of Dabierin’ s case (supra). So, the wish which Mbanefo, C.J., expressed in Ejike’s case in 1961 that the rule in Clemens’ case be overruled was effectively executed by implication in 1968 in Dabierin’s case. Until this Court has been duly asked, and persuaded, to overrule Dabierin’s case (supra) that represents the law. So, the principle of reasonableness introduced into the concept of claim of right in the case of Clemens has no place under the Nigerian law on the point.
In the instant case it is my view that the fact that the appellant had some two years before the poles were planted, filed a suit to press his claim is proof positive of the honesty of his belief that the land is his own. I, therefore, agree that the defence of claim of right was available to him and succeeded.
Before I conclude, I would like to make an observation on some dicta which appeared to have influenced the reasoning in the judgments of the Courts below, apart from the dissenting judgment of Uwaifo, J.C.A., in the Court of Appeal. Some of those Courts have described the act of the appellant as uncivilized. Some have even alluded to the principle in the decision of this Court and the Court of Appeal in Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621, (1986) 2 S.C. 277, where resort to self-help in an area such as Nigeria where the rule of law operates has been condemned. It was then stated that the appellant ought not to have resorted to self help. With greatest respects, this attitude to the case of the appellant raises some fundamental issues. First, it is settled that principles of liability in civil and criminal cases are basically different. The clear intention of section 23 of the Criminal Code is to immune an accused person who successfully pleads a bona fide claim of right from criminal liability. It does not pretend to extend to civil liability. One may ask: what will happen if in the case in hand the appellant eventually succeeds to substantiate his belief that he was the owner of the land in dispute after his conviction stands and the sentence of one year imprisonment (or a fine of N500.00) has been served. Such a situation will certainly lead to absurd consequences. Section 23 of the Criminal Code was designed to avoid these. Secondly, as section 23 of the Criminal Code is limited to criminal, and does not extend to civil cases it would be wrong in my view to transport a forensic reasoning appropriate to one set of cases to another, which was never intended by the legislator. After all, laws passed by the legislature are an expression of the public policy of the state and the function of the Courts is to ascertain, declare and enforce such laws; hence their ever-ending search for the intention of the legislator. Where that intention has been clearly expressed in and limited to one particular set of laws or situations, I see no warrant for extending it to any different one. I cannot, therefore, see the reason for taking away or watering down an express protection given by the legislator in a criminal case relating to property because of a reasoning germane to a civil situation. Thirdly, it is my view that the inappropriateness of the approach under discussion will become only too obvious if we realize that the rationale behind the provision in section 23 of the Criminal Code is to negative the requisite mens rea, one of the two ingredients of criminal liability, in such a case – a consideration that is irrelevant in civil cases. I am, therefore, of the view that it will be dangerous to apply a reasoning which is suitable to civil cases to a criminal case in which a claim of right made in good faith has been raised.
For the above reasons and those that have been given in the lead judgment of my learned brother Ogundare, J.S.C., which I adopt as my own, I also allow the appeal. I set aside the conviction of, and sentences passed on, the appellant and in their place enter a verdict of discharge and acquittal. If the fine has been paid, it shall be refunded.