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Published online by Cambridge University Press: 28 July 2009
The trend of some Nigerian decisions where the defence of honest claim of right is raised is disturbing and shows a lack of proper appreciation of its scope. The defence is contained in section 23 of the Criminal Code which provides as follows:
“A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud”.
This defence applies to all offences relating to property: stealing, robbery, demanding property with menaces, malicious damage to property etc. But it features more in theft offences than in other offences relating to property.
2 [1938] 2 K.B. 264.
3 Onwukwalonye v. C.O.P. (1967), F.N.L.R. 44.
4 UHC/15C/70 (unreported).
5 This section is the same as s. 23 of the Eastern Nigerian Criminal Code.
page 272 note 1 This is the equivalent of s. 401 of the Eastern Nigeria Criminal Code.
page 272 note 2 In State v. Nwokoro AG/5C/70 (unreported) the Mid-West High Court (Aghoghovbia, J.) was prepared to hold that where A severely beat up B and took his money, mistakenly believing that B was one of the thieves who had just stolen money from him (A), the defence of honest claim of right was available to him on a charge of robbery.
page 272 note 3 [1964] 1 All N.L.R. 386.
page 272 note 4 A claim of right asserted for another person is a good defence if the person asserting it believes he is justified in doing so, See R. v. Williams (1836), 7 C. & P. 354; 173 E.R. 158; Udu v. I.G.P. (1964), M.N.L.R. 116; Anyijiofor v. C.O.P.
pagae 272 note 5 O/3CA/1971 (High Court, Onitsha), (unreported).
page 273 note 1 Okoro v. C.O.P. (1972), 2 E.C.S.L.R. 230.
page 273 note 2 (1864) 4 F. & F. 50; 176 E.R. 462. See also R. v. Boden (1844), 1 C. & K. 395; 174 E.R. 863.
page 273 note 3 My italics. Brett & McLean state that “the claim of right must be made not only in respect of the object to be attained by the act or omission but also in respect of the means used to attain that object”. See Brett & McLean, Criminal Law and Procedure of Lagos, Eastern Nigeria and Western Nigeria, para. 1391. This view, with respect, is wrong.
page 273 note 4 [1967] 1 All E.R. 483 overruling R. v. King Jones and Gladdy, [1966] 1 W.L.R. 1077.
page 274 note 1 Cf. R. v. Boden (1844), 1 C. & K. 395; R. v. Skivington above.
page 274 note 2 In Anyijiofor v. C.O.P. the High Court said: “If the appellant used slight force on P.W. 1 which is necessary as a means of effecting and facilitating the taking away of the bicycle on a claim of right made honestly and in the belief he has a lawful claim, that in itself would not constitute an assault”. This sounds reasonable though perhaps difficult to justify under the Code which protects persons in peaceable possession of movable property under a claim of right even against “a person who is entitled by law to possession of the property”, see C.C. s. 290. The implication of C.C. s. 291 is that a person entitled by law to possession of movable property may not use force to take it from a person who is already in possession under a claim of right.
page 274 note 3 Cf. R. v. Rutter (1908), 25 T.L.R. 73; 1 Cr. App. R. 174. See Glanville Williams: Criminal Law, The General Part, 2nd ed. p. 309. D may be liable in tort (trespass to land); see Basely v. Clarkson (1681), 3 Lev. 37.
page 274 note 4 Okeanya v. C.O.P. (1972), E.C.S.L.R. 159.
page 275 note 1 It is thought that the property to which the defence applies comprises things planted, built or put on the land by C in assertion of his claim or in exercise of rights of ownership. If C drives his car to a disputed piece of land in order to inspect the land and D willfully burns it he surely cannot rely on s. 23. No court will believe that he entertained an honest belief in his right to destroy the car.
page 275 note 2 (1961), 5 E.N.L.R. 7.
page 275 note 3 (1967), F.N.L.R. 44.
page 275 note 4 (1964), M.N.L.R. 48.
page 275 note 5 S. 21 of the Midwest Criminal Code is equivalent to s. 23 of the Eastern Nigeria Code.
page 275 note 6 W/14CA/70 (unreported, Midwest High Court).
page 276 note 1 At pp. 9–10, author's italics. Cf. Festus v. C.O.P. (1960), W.R.N.L.R. 16 at p. 17.
page 276 note 2 PHC/13CA/72 (unreported).
page 277 note 1 Francis v. Ibitoye (1936), 13 N.L.R. 11; Oso v. Olayioye 1966 N.M.L.R. 329.
page 277 note 2 (1972), 2 E.C.S.L.R. 207.
page 277 note 3 At p. 210.
page 277 note 4 Cf. Glanville Williams: Criminal Law: the General Part, p. 310—“The conclusion is that reasonableness is irrelevant-except, of course, as having an evidential bearing on the question of whether the belief existed”. After considering R. v. Clemens, [1898] 1 Q.B. 556 which introduced the requirement of reasonableness and was followed in Heaven v. Crutchley (1903), 68 J.P. 53 the learned author expressed the hope that “these decisions will one day be reconsidered” at p. 312.
page 277 note 5 Onwukwalonye v. C.O.P. (1967), F.N.L.R. 44 at p. 48. Quaere, whether D can successfully invokes. 23 (on a charge of stealing) where he not only destroys C’s crops on disputed land but cuts down C’s ripe pineapples, sells them and keeps the money?
page 277 note 6 Cf. the dictum in Ejike v. I.G.P. above. “The reasonableness of his action is a pointer to the state of his mind”, at p. 10. See Brett & McLean para. 1390: “though the question, whether a claim is reasonable or not, may have a bearing on the question, whether or not it is honestly held”. See Glanville Williams op. cit. at p. 310. Factors which may affect the reasonableness of D’s conduct will include the value of the property destroyed, the circumstances of the claim, the hotness of the dispute and the conduct of the complainant.
page 278 note 1 In C.O.P. v. Iffie, the accused was in fact charged with this offence in the first count. For some other cases where this offence was charged see Okotie-Eboh v. D.P.P. (1962), 1 All N.L.R. 353; Obot v. C.O.P. (1963), 7 E.N.L.R. 15.
