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F.S.C. 236/1960


3PLR/1961/33  (FSC)







JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)








GEORGE – for the Appellant.

AGHAHOWA – for the Respondent.



CRIMINAL LAW AND PROCEDURE:-Assault on Police Officer acting in the Execution of his duty – Section 356(2) Criminal Code – Ingredients of

CRIMINAL LAW AND PROCEDURE – POLICE PROCEDURE: Assault of police officers in the execution of duties – Effect of a valid warrant in establishing charge thereof

TORT AND PERSONAL INJURY: – When a Police officer is deemed to be a trespasser even in the line of duty

CHILDREN AND WOMEN LAW:- Interference with law enforcement processes – Wife aiding husband to escape the execution of a warrant of arrest resulting in the unlawful assault of police officers – How treated


TAYLOR, F.J. (Delivering the Judgment of the Court):

The appellant in this appeal, the Commissioner of Police, Western Region, was the comp­lainant in the Court of Trial where the present three respondents were tried and convicted of unlawfully assaulting Police Constable Christopher Oboh while acting in the lawful execution of his duty contrary to s. 356(2) of the Criminal Code. On appeal to the High Court of the Benin Judicial Division, the Learned Judge allowed the appeal and set aside the conviction and sen­tences passed on the present respondents by the Senior Magistrate and sub­stituted therefore a verdict of acquittal. It is from this judgment of the High Court that the Commissioner of Police, Western Region, who, being the prosecutor, can appeal only on a question of law in this matter, has appealed to this Court.

The only ground of appeal urged before us was ground 1, which states that:­

The Learned Judge of appeal erred in law in holding that the Police Constable Christopher Oboh was not acting in the execu­tion of his duty when he was assaulted by the accused persons.

During the course of his argument, Learned Counsel for the appellant dealt with the following two matters:­

(a)     Whether knowledge of the fact that the man assaulted was in fact a police constable was an essential ingredient of the offence re­quired to be proved by the prosecution, and secondly;

(b)     whether the police constable was or was not at the time of the of­fence acting in the execution of his duty.

The facts relevant to the appeal and particularly to the ground of appeal argued were as follows:­

Three constables in plain clothes proceeded in company of other per­sons to the house and premises of the First respondent in order to execute a search warrant – exhibit “A.” One of these constables, prosecution witness 4, had, the previous month, had occasion to visit the First respondent in the latter’s house in connection with stolen property, so that the First respon­dent was known to him as was deposed to by him. On arrival, one of the con­stables, prosecution witness 3, Constable Oboh brought out a search war­rant and proceeded to read it out to the First respondent. In the course of his doing so, a lady, who was the Fourth accused in the Court of first instance and was there discharged on a submission of no case to answer, entered the house of the First respondent, her husband. As she did so the First respon­dent spoke to her in the Ibo language, telling her to throw away a certain bag, whereupon she got hold of the bag and started to run outside with it. The Third prosecution witness, Constable Oboh, pursued her and they were followed by the three respondents and the remaining two constables. The lady threw the bag over the fence into the bush, and as prosecution witness 3 tried to climb the fence, the respondents set upon him, beat him and tore his clothes. The other constables were also assaulted by a crowd which gathered at the scene.

The trial Magistrate after a full consideration of the evidence before him, held that the respondents knew that the policemen were in fact police­men at the time of the assault and further that the Third prosecution witness was assaulted by the respondents in the lawful execution of his duty. As a re­sult he found the respondents guilty as charged and passed sentences of 18 months, 12 months and 12 months imprisonment with hard labour on the three respondents respectively.

The Learned Judge on appeal, reversing the decision of the Trial Magis­trate held as follows:­

In my opinion the Police Constables did not have a search war­rant to be executed on the premises of the 1st appellant, and on the evidence of the prosecution, it is doubtful as to whether the 1st appellant, believed that P.C. Oboh and others were constables.

If P.C. Oboh did not have a search warrant in respect of the premises of the 1st appellant, the appellant was entitled to de­fend his rights if the Police wanted to force the issue as it ap­peared they did.

In an earlier passage in the judgment of the Learned Judge on appeal he said that:­

If the warrant was read as alleged to the 1st appellant and he be­lieved that it was not meant for him, Alloysius Igwe, but for Amos or Anna of Ibo, he was within his rights to ask the consta­bles who were in mufti to go away.

Counsel for the appellant in the course of his argument contended that a Court of Appeal should not reverse a finding of fact of the lower Court where the Appeal Court is in some doubt on the evidence, as he contended the Judge of appeal was, as shown in the passage to which I have made refer­ence. The Trial Judge’s judgment does not, however, rest on this point, but on the issue of whether, the search warrant being defective through a mis­nomer, the constables were lawfully acting in the execution of their duty. There is therefore no need to say more on this point than to refer to a short judgment of the Recorder of London in the case of R. v. Forbes & Webb 10 Cox 362, approved of by the Lord Chief Justice in R. v. Maxwell & Clanchy 2 CA. R. 26 atpage27. In the former case a submission was made by Counsel for the accused that there was no evidence to go to the Jury in support of the count for the assault on the policemen in the execution of their duty, because in consequence of their being in mufti, the prisoner did not know they were policemen. The Recorder, however, held that:­

The offence was, not assaulting them knowing them to be in execution of their duty, but assaulting them being in the execu­tion of their duty.

Be that as it may, as I have said, the decision of the Judge of appeal re­sted on the other point to which I now turn. One must but agree with the general proposition of law stated by the Judge of appeal on this point and which has been quoted in an earlier passage in this judgment. The Learned Judge in applying [on] the principle gathered from the cases of R. v. Flight Lieutenant Austin Robert Quinn 10 W.A. C.A. 243 and Davis Lisle 1936 2 K. B. 434, to the facts of the case before him seems to have lost sight of the fact that at no time from the stage when the police officers entered the house of the 1st respondent to the time when they were assaulted were they ever told in so many words to leave the premises. This point formed the ratio de­cidendi in the case of Davis Lisle, where Lord Hewart, C.J., said at page 437 that:­

Admittedly, the officers had no warrant entitling them to search the premises. It is one thing to say that the officers were at liberty to enter the garage to make an inquiry, but quite a different thing to say that they were entitled to remain when, not without em­phasis, the appellant had said: “Get outside. You cannot come here without a search warrant.” From that moment on, while the officers remained where they were, it seems to me that they were trespassers.

In the present appeal the police officers were never trespassers, for the reason already given. Further, at the time of the assault on the constables, their reasonable suspicions having been aroused as to the contents of a bag by the instructions given by the 1st respondent to the 4th accused, they were endeavouring to prevent the latter from disposing of same. They were clearly acting in the execution of their duty.

For these reasons we allow this appeal, set aside the verdict of acquittal entered by the Judge on Appeal and restore the verdict and sentence passed on the respondents by the Trial Magistrate. The Court below to carry out this order.

Appeal Allowed; Magistrate’s Judgment Restored.


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