GODFREY OKPARA (APPELLANT)
INSPECTOR-GENERAL OF POLICE (RESPONDENT)
(1961) All N.L.R. 18
Division: Federal Supreme Court
Date of Judgment: 23rd January, 1961
Case Number: FSC 204/1960
Before: Brett F.J.J.
It was the day before an election. Some of a mob entered the appellant's house and threw bottles at the police. An officer and his men entered the house and took away empty bottles and other things, and brought them to the station. Later, the officer with some men went to the house, and, thinking a disturbance was likely and that his force was inadequate, boarded a Land Rover, standing on the tail-board, as the car was slowly going uphill. The appellant was nearby. Someone shouted, "That is the man who pulled down your house, go and hold him." The appellant chased the Land Rover, and pulled the officer down, saying to him "You will not go until you have explained why you entered my house in my absence." The appellant was convicted by the magistrate of assaulting the officer, contrary to section 356(2) of the Code, and appealed to the High Court. The Judge held as a fact that the purpose of the assault was not to retake the goods but to inquire the reason for the trespass to the house, and dismissed the appeal. The appellant appealed further on points of law only. It was argued for him that the assault was justified under section 25 of the Code (which relates to mistake of fact as a defence), or section 289 (which relates to defence of one's goods), or section 291 (which relates to retaking possession of one's goods), or section 293 (which relates to defending possession of one's land); also that the officer was not then acting in the execution of his duty, and it was at most a common assault, if unjustified.
There was also an appeal against sentence on the ground that the purpose of the assault was not to harm the officer.
(1) None of the sections relied upon could avail the appellant: for the findings of fact negatived any honest and reasonable belief which would have availed him, and the Judge held as a fact that the purpose of the assault was not to retake the goods but to inquire the reason for the trespass to the house.
(2) As the officer, when assaulted, was going to the police station to obtain reinforcements against a threatened disturbance, he was acting in the execution of his duty.
(3) Whatever the purpose of the assault, pulling a man down from a moving car is dangerous to the man pulled down; the sentence of four months in this case was not excessive.
APPEAL from High Court of Lagos.
Fani-Kayode, Q.C. (with him Okunu) for Appellant.
Oki, Senior Crown Counsel, for Respondent.
Brett, F.J., delivering the Judgment of the court:-This is an appeal against the Judgment of Bellamy, Ag. C.J., in the High Court of Lagos, dismissing an appeal from the conviction of the appellant in the magistrate's court on a charge of assaulting a police officer, named Omoba, while in the execution of his duty, contrary to section 356(2) of the Criminal Code.
The grounds of appeal filed raised questions of law alone, and the following statement of the facts is taken from the Judgment of the High Court:-
On the 28th October, 1959, the day before the Lagos Town Council elections, Assistant Superintendent of Police Mr Hector Omoba (whom I shall call hereafter Mr Omoba) was on duty with a party ten constables in a police Land Rover patrolling the streets in Abule Ijesha with the object of preventing disturbances in that district. All was quiet in that district during the morning, but about 1.30 p.m. there was a disturbance outside No. 7 Kayode Street where a road block had been created in order to prevent an Action Group jeep from passing through, and Mr Omoba was compelled to order his men forcibly to disperse the crowd which had assembled there. Some of the mob entered No. 7 Kayode street from where Mr Omoba and his men were pelted with empty beer bottles picked up from a heap of bottles lying at the entrance to the house. Mr Omoba and his men then entered the house, and took possession of the remainder of the empty beer bottles-about twenty-five in all-together with two cutlasses, two drums, and a native guitar. Mr Omoba and his men then returned to the police station where a report of the situation was lodged and the articles seized were handed in. While Mr Omoba was at the police station a telephone message was received that No. 7 Kayode Street was being pulled down by Action Group supporters, and Mr Omoba and his men returned to the scene to investigate this report. On arrival at No. 7 Kayode Street Mr Omoba discovered that the report was false, there being no signs of any attack having been made upon the house which was quiet. Mr Omoba then returned to the police station with his party of constables. After an interval of about an hour, about 2.45 p.m., Mr Omoba and his men returned with another party of ten constables under the command of Assistant Superintendent of Police Mr Moreton, to the house. On their arrival at the house, they found a large crowd of people in the street. This crowd was quiet, but having regard to the expression on their faces Mr Omoba apprehended that there might be a disturbance, in which case he considered that the police party would be inadequate to deal with the situation on equal terms with the mob. He accordingly decided to return to the police station for police reinforcements. He made his way to his Land Rover and, lowering the tail-board, he stood on it, facing the crowd. As the Land Rover began to move away the crowd started to pelt stones at Mr Omoba and his men. While the Land Rover was being driven slowly uphill, a small grey car was seen approaching it from the rear. As it came nearer, there were shouts from the mob. "Make you go Mr Okpara done come. You want run away because Okpara done come." Then some in the crowd shouted, "That is the man who had pulled down your house. Go and hold him." Mr Omoba then saw the appellant jump out of the small grey car, and he began chasing the Land Rover, which was travelling slowly, the appellant, pointing at Mr Omoba, said, "You get down, you get down." When he eventually drew level with the Land Rover, the appellant gripped Mr Omoba by the left shoulder and pulled him from the vehicle to the roadway.
The appellant continued to hold Mr Omoba, saying to him, "You will not go until you have explained why you entered my house in my absence." The appellant continued to grip Mr Omoba, and it was not until A.S.P. Mr Moreton arrived at the place where they were and intervened that the appellant released his hold on Mr Omoba. A.S.P. Mr Moreton then charged the appellant and he was taken to one police station.
Mr Fani-Kayode, for the appellant, submits that on the proved facts the assault was justified under section 25, section 289, section 291 or section 293 of the Criminal Code, or a combination of these sections. Section 25 deals with a mistake of fact as a defence and the submission is that if the appellant had an honest and reasonable belief that circumstances existed which would make it lawful for him to use force under one or more of the other sections, he is entitled to be acquitted. Mr Fani-Kayode further submits that the removal of the bottles and other goods from the appellant's house was an act of trespass, and that the appellant was entitled to use force to retake them under section 289 of the Code, without invoking section 25. The answer to these submissions is that the findings of fact negative any honest and reasonable belief which would have availed the appellant, and that the Judge held as a fact that the purpose of the assault was not to retake the goods but to inquire the reason for the trespass to the house. Even on the basis of this finding, Mr Fani-Kayode submits that section 295 of the Criminal Code justifies the assault, but that section deals with a person who is defending his possession of real property, not with one who is retaliating for a trespass which is over and done with, at least when there is no threat that it will be repeated. We see no grounds for holding that the assault was authorised, or justified or excused by law.
Mr Fani-Kayode goes on to argue, however, that even if an unlawful assault was committed it was no more than a common assault and that it was not shown that Mr Omoba was assaulted while acting in the execution of his duty. We agree that a distinction exists between a police officer who is on duty and one who is acting in the execution of his duty, but we have no doubt that Mr Omoba, who was returning to the police station to obtain reinforcements for the purpose of dealing with a threatened disturbance, was acting in the execution of his duty within the meaning of section 356(2) of the Criminal Code, and there are no grounds for substituting a conviction for common assault.
Finally, Mr Fani-Kayode submits that the purpose of the assault was not to harm Mr Omoba and that the sentence of four months imprisonment with hard labour was excessive. Whatever the purpose was, we agree with the learned Magistrate that in pulling Mr Omoba down from a moving vehicle the appellant did a very dangerous thing which could have led to very serious consequences for Mr Omoba, and we see no ground for regarding the sentence as excessive. The appeal is dismissed.