case are sufficiently set out in
the judgment.
E. C. C.
Pyne
for Appellant.
E.
O.
Pretheroe
for Crown.
The following judgment was
delivered :KINGDON, c.].,
NIGERIA.
The appellant appealed against
his conviction for the murder of
Eteng Usani on the ground that
(a)
the homicide was justifiable as
being in defence of his property
and
(b)
there was sufficient provocation
to reduce the offence to
manslaughter.
The Acting Solicitor-General at
the outset intimated that he
could not support the conviction
for murder. He submitted,
however, that on the facts
appellant should have been
convicted of the offence of
manslaughter. After hearing him
and Counsel for the appellant
this Court quashed the
conviction and stated that it
would give reasons in writing
for that decision.
The evidence shows that on the
30th and 31st December, 1935,
there was considerable fighting
in the town of Ugep between the
people of the Biko-Biko and
Ukpakapi quarters and those of
the Ijiman quarter, which
resulted in two persons, one of
whom was Eteng Usani, being
killed and a number of others
being wounded.
The Assistant Judge in the
course of his" summing up"
wrote:
"The accused is a trader and is
apparently well-to-do, although
a comparatively young man. He
had almost completed the
building of a concrete and
corrugated iron house which was
to have been one of the best in
the town. On the 30th December
he saw this house almost
completely ruined through no
fault of his own. He had no
concern with the quarrel which
led to the riot and took no part
in the riot. On the night
following the beginning of the
riot he removed such of his
property as he could to the
house of a friend at some
distance and stayed there. I
think that early in the morning
of the 31st he returned to his
house either to salve the
remainder of his property or to
see what was happening to it.
While he was there the riot was
resumed and stones were again
thrown at his house and further
damage was done. At first he
remained within his house, but
after a time, thoroughly
exasperated, he seized a gun,
probably that of his brother
referred to by eighth witness,
went out on to the verandah and
fired at the crowd. I do not
believe that there was any
previous intention to shoot and
I do not believe that he shot at
any particular person."
36
Appeal Court. 22 April,
1938.
Appeal from Conviction by High
Court.
REX
Lagos, 22nd April, 1936.
Cor. KINGDON, PETRIDES and
WEBBER, c.J J.
Respondent.
L
[
Rex v. Mbui Ebi.
From the evidence of the first
witness for the prosecution, Rex
which was accepted as reliable by
the learned trial Judge, it would
M~~i Eb· appear that in the
fighting of the 31st both sides
were wearing _1. helmets and
carrying shields and that some of
them were armed Kingdon, with
machetes; that while the Ukpakapi
people were throwing c.]. stones
at the appellant's house the
latter came out on to the verandah
and fired with the object of
frightening the attackers and hit
Eteng
Usani, who was wearing a war
helmet and carrying a shield and
stones.
From the "summing up" it will be
seen that the learned Assistant
Judge held that
(a)
the killing was not justified on
the ground of defence of property,
and
(b)
although there was provocation in
a high degree it was not such as
to reduce the killing to
manslaughter. Although one person
besides Eteng Usani lost his life
in the fighting, there is nothing
in the " summing up " to show that
the learned Assistant Judge
considered whether the killing was
justifiable as having been done in
self-defence.
By section 76 of the Criminal Code
persons who, being riotously
assembled together, unlawfully
pull down or destroy or begin to
pull down or destroy any building
are guilty of a felony and liable
to imprisonment for life. By
section 77 if such persons merely
unlawfully injure buildings they
are guilty of a felony and liable
to seven years' imprisonment.
In
Russell on Crimes,
eighth edition, p. 775, it is
pointed out that a man is
justified in repelling force by
force in defence of his person,
habitation, or property, against
one who manifestly intends and
endeavours, by violence or
surprise, to commit a felony upon
either; and if, in a conflict
between them, he happens to kill,
such killing is justifiable.
In
Archbold,
twenty-ninth edition, at p. 892
et
seq.,
the question of when killing in
defence of person or property is
examined at some length, at p. 894
it is stated :-
•. But in defence of a man's
house, the owner or his family may
kill a trespasser who would
forcibly dispossess him of it, in
the same manner as he might, by
law, kill in self-defence a man
who attacks him personally; with
this distinction, however, that in
defending his house, he need not
retreat, as in other cases of
self-defence, for that would be
giving up his house to his
adversary." (I Hale 485 and 486.)
This passage was quoted with
approval by the Court of Criminal
Appeal in
R.
v. Hussey,
18 Cr. App. R. 160.
On the facts found by the learned
Assistant Judge we consider that
appellant was entitled to be
acquitted on the ground that the
killing was justifiable in defence
of his property against the
felonious attempt to destroy it
and it is for this reason that we
quashed the conviction.
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