Search summary:

IN THE HIGH COURT OF EBONYI STATE

ON MONDAY, THE 14TH DAY OF DECEMBER 1970

AB/3C/70

BETWEEN

THE STATE ...................................................... COMPLAINANT

AND

NWINBO OKERE ................................................... ACCUSED

BEFORE: Anyah, J.

 

The accused was charged with murder. The evidence was that the accused had a farm in which he planted yams. One night as he was keeping watch over his farm the deceased came and dug up some yams and was carrying them away when the accused challenged him. As the accused approached the deceased, the deceased raised his hatchet against the accused whereupon the accused drew his own hatchet and struck the deceased twice. The deceased fell down and the accused went to report the incident to the Police.

At the trial, Counsel for the defence submitted that the accused killed the deceased in self-defence and under extreme provocation. He contended that the provocation arose when the deceased raised his hatchet in an attempt to kill the accused who caught him stealing yams belonging to the accused.

In reply, Counsel for the Prosecution contended that no one has any legal right to kill a thief.

 

HELD:

A person who in the night finds another in the act of committing a felony is entitled to use such force as may be necessary to apprehend the felon even to the extent of killing him in order to prevent his escape.

In this case the deceased was armed and threatened the accused's life by raising the hatchet. In the circumstances, the accused had the power to arrest the deceased who was committing the felony of stealing the yams of the accused. In the exercise of this power the accused was entitled to use necessary force to apprehend the deceased. The accused had a right to use his own hatchet on the deceased to prevent his escape and also in self-defence as his own life was in danger.

Accused found not guilty.

 

Cases referred to:

Queen v. Oladipo Oshunbiyi (1961) 1 ALL N.L.R. 453

R. v. Igwe 4 W.A.C.A. 117

Obot v. The Queen 14 W.A.C.A. 352

 

CRIMINAL TRIAL

 

Amiasiani, for the Complainant.

Metuh, for the Accused.

 

Anyah, J.:-This is a charge of Murder against accused, Nwinbo Okere, in that he on or about 8th day of May, 1969 at Ndechi, Abakaliki, within this Judicial Division murdered Ezeode Egbe. In support of the charge the prosecution called the evidence of two witnesses. The defence comprised the evidence of the accused only.

The facts are brief and uncontroversial. They are as follows: The accused had a farm on which he planted yams for the planting season of 1969. Thieves frequented this farm to dig up the newly planted yams. On or about 8 May, 1969, the accused in the night went to this farm to keep watch and, if possible, to catch any thief that may come to steal the yams already buried in the yam mounds. As the accused was in the farm someone who later became the deceased came to the farm and dug up the accused's yams and put the quantity dug up into a sack, (exhibit A). The accused rose from his vantage point and challenged the deceased, who was then carrying away his booty. As the accused approached the deceased who had hatchet (exhibit C), the deceased raised up the hatchet against the accused whereupon the accused drew his own hatchet and struck the deceased twice, one on the neck and the other on the hand. The deceased fell down and the accused left the farm to report the incident to the Police the next morning at Abakaliki. The Police the next day after receiving the report went with accused to the farm and there saw the body of the deceased lying on the farm with exhibit A containing yams beside him and exhibit C in his hand.

On the facts given above the learned defence Counsel submitted that accused killed the deceased in self-defence and under extreme provocation offered to him. He contended that the provocation arose when the deceased raised his hatchet in an attempt to kill the accused who caught him stealing yams belonging to the accused.

In support of his argument learned defence Counsel cited the cases of the Queen v. Oladipo Oshunbiyi (1961) 1 All N.L.R. 453. R. v. Igwe 4 W.A.C.A. 117 and 14 W.A.C.A. 352 at page 353.

In reply the learned Counsel for the State merely contended that no one has any legal right to kill a thief. I agree that no one has right-absolute right to kill a thief. In Obot v. The Queen 14 W.A.C.A. 352 at P. 353 Verity, C.J., held:-

"A person who in the night finds another in the act of committing a felony is entitled to use such force as may be necessary to apprehend the felony even to the extent of killing him in order to prevent his escape, but it would be an unhappy state of affairs if when he has caught up with the escaping felon who is unarmed he should be at liberty to hack him to death with a lethal weapon such as a hatchet. This goes far beyond the force which would be justified by circumstances and is in our view clearly murder."

The present case would have fallen on all fours with the case of Obot v. The Queen, but for the fact that the deceased in this case was armed and not only that but threatened the accused's life by raising the hatchet to strike him a blow. In the circumstances of this case, I hold that the accused had the power to arrest the deceased who was at night in his farm committing the felony of stealing the yams the accused had planted. In the exercise of this power the accused was entitled to use necessary force to apprehend the deceased. When in the course of the exercise of this power of arrest the deceased raised his hatchet, a lethal weapon to strike, the accused, in order to assure his escape, the accused had a right to use his own hatchet on the deceased to prevent his escape and also in self-defence as in the case of R. v. Igwe 4 W.A.C.A. 117 as his own life was in danger.

In the final result I find the accused not guilty. He is acquitted and discharged.

Accused found not guilty.