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FEDERAL SUPREME COURT OF NIGERIA
9TH AUGUST, 1963.
BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT, AG. C.J.F. (Presided and Read the Judgment of the Court)
SIR CLEMENT NAGEON DE LESTANG, C.J. (Lagos)
SIR SAMUEL OKAI QUASHIE-IDUN, C.J., (W.N.)
CRIMINAL LAW AND PROCEDURE – Private arrest – Preventing escape from – Extent of force exercisable by private person – Section 272 Criminal Code.
INTERPRETATION OF STATUTES – Sections 261 and 272 of the Criminal Code – Application.
BRETT, AG. C.J.F. (Delivering the Judgment of the Court): The appellant was convicted of murdering Ede Ogaugwu. His appeal came up for hearing on the 6th August, and was dismissed, and we now state the reasons for this decision.
The appellant’s conviction rested entirely on his own confession, made shortly after the event, which was confirmed by his taking the police first to a stream where the decapitated body of the deceased had been pinned down under water, and two days later to where the head of the deceased was hidden. He did not give evidence at the trial.
According to the appellant’s confession the deceased had gone to his house to steal his money, and he had killed him with a stick and later cut off his head. The evidence of the deceased’s brother was that the deceased had gone to cut rope for making sponge, and there was some suggestion that he might have unlawfully witnessed a masquerade.
At all events, the Judge considered whether the act of the appellant could be justified as an exercise of the right to use force in arresting a person found by night committing a felony, which was stated in R. V Ndo 14 W.A.C.A 352, to extend even to the use of such force as to kill him in order to prevent his escape. The Judge rejected the possibility, first on the ground that he was not satisfied that the deceased had been committing a felony, and secondly on the ground that there was no evidence, even if the deceased had been committing felony, to show that the degree of force used was necessary in order to arrest him. We agree with the Judge in rejecting the possibility, and it may be added that the Court may some time have to consider whether the statement in R. V Ndo, which appears to be an obiter dictum, and to state the rule of English law as set out in Archbold 35th edition, paragraph 2528, correctly states the law of Nigeria as it affects those who are not peace officers or police officers, having regard to the wording of the Criminal Code.
Section 261 of the Code permits the use of such force as is reasonably necessary to overcome force used in resisting a lawful arrest, but section 272, which is the section dealing with the right of a private person to use force in order to prevent another person from escaping arrest by flight, does not authorise the use of force which is intended or is likely to cause death or grievous harm.
DE LESTANG, C.J. (Lagos): I concur.
QUASHIE-IDUN, C.J. (Western Nigeria): I concur.