Okpara Godfrey Vs Inspector-general Of Police (1961)
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BRETT, F J
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 s. 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 of 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. Ornoba 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 s. 25, s. 289, s. 291 or s. 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 s. 289 of the Code, without invoking s. 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 s. 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 s. 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. Ornoba, and we see no ground for regarding the sentence as excessive. The appeal is dismissed.
Other Citation: (1961) LCN/0946(SC)
